19738 Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 8, and 20 

[GN Docket No. 14–28, FCC 15–24] 

Protecting and Promoting the Open 

Internet 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) establishes rules to 

protect and promote the open Internet. 

Specifically, the Open Internet Order 

adopts bright-line rules that prohibit 

blocking, throttling, and paid 

prioritization; a rule preventing 

broadband providers from unreasonably 

interfering or disadvantaging consumers 

or edge providers from reaching one 

another on the Internet; and provides for 

enhanced transparency into network 

management practices, network 

performance, and commercial terms of 

broadband Internet access service. 

These rules apply to both fixed and 

mobile broadband Internet access 

services. The Order reclassifies 

broadband Internet access service as a 

telecommunications service subject to 

Title II of the Communications Act. 

Finally, the Order forbears from the 

majority of Title II provisions, leaving in 

place a framework that will support 

regulatory action while simultaneously 

encouraging broadband investment, 

innovation, and deployment. 

DATES: This rule is effective June 12, 

2015. 

The modified information collection 

requirements in paragraphs 164, 166, 

167, 169, 173, 174, 179, 180, and 181 of 

this document are not applicable until 

approved by the Office of Management 

and Budget (OMB). The Federal 

Communications Commission will 

publish a separate document in the 

Federal Register announcing such 

approval and the relevant effective 

date(s). 

FOR FURTHER INFORMATION CONTACT: 

Kristine Fargotstein, Competition Policy 

Division, Wireline Competition Bureau, 

at (202) 418–2774 or by email at 

Kristine.Fargotstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order on Remand, Declaratory 

Ruling, and Order (‘‘Open Internet 

Order’’ or ‘‘Order’’) in GN Docket No. 

14–28, adopted on February 26, 2015 

and released on March 12, 2015. The 

full text of this document can be viewed 

at the following Internet address: 

https://apps.fcc.gov/edocs_public/

attachmatch/FCC-15-24A1.docx. The 

full text of this document is also 

available for public inspection during 

regular business hours in the FCC 

Reference Center, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

To request materials in accessible 

formats for people with disabilities (e.g. 

braille, large print, electronic files, 

audio format, etc.) or to request 

reasonable accommodations (e.g. 

accessible format documents, sign 

language interpreters, CART, etc.), send 

an email to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at (202) 418–0530 (voice) or 

(202) 418–0432 (TTY). 

Synopsis 

In the Report and Order on Remand, 

Declaratory Ruling, and Order, we 

establish rules to protect and promote 

the open Internet, reclassify broadband 

Internet access service as a 

telecommunications service subject to 

Title II of the Communications Act, and 

forbear from the majority of Title II 

provisions. 

I. Introduction 

1. The open Internet drives the 

American economy and serves, every 

day, as a critical tool for America’s 

citizens to conduct commerce, 

communicate, educate, entertain, and 

engage in the world around them. The 

benefits of an open Internet are 

undisputed. But it must remain open: 

Open for commerce, innovation, and 

speech; open for consumers and for the 

innovation created by applications 

developers and content companies; and 

open for expansion and investment by 

America’s broadband providers. For 

over a decade, the Commission has been 

committed to protecting and promoting 

an open Internet. 

2. Four years ago, the Commission 

adopted open Internet rules to protect 

and promote the ‘‘virtuous cycle’’ that 

drives innovation and investment on the 

Internet—both at the ‘‘edges’’ of the 

network, as well as in the network itself. 

In the years that those rules were in 

place, significant investment and 

groundbreaking innovation continued to 

define the broadband marketplace. For 

example, according to US Telecom, 

broadband providers invested $212 

billion in the three years following 

adoption of the rules—from 2011 to 

2013—more than in any three year 

period since 2002. 

3. Likewise, innovation at the edge 

moves forward unabated. For example, 

2010 was the first year that the majority 

of Netflix customers received their 

video content via online streaming 

rather than via DVDs in red envelopes. 

Today, Netflix sends the most peak 

downstream traffic in North America of 

any company. Other innovative service 

providers have experienced 

extraordinary growth—Etsy reports that 

it has grown from $314 million in 

merchandise sales in 2010 to $1.35 

billion in merchandise sales in 2013. 

And, just as importantly, new kinds of 

innovative businesses are busy being 

born. In the video space alone, in just 

the last sixth months, CBS and HBO 

have announced new plans for 

streaming their content free of cable 

subscriptions; DISH has launched a new 

package of channels that includes ESPN, 

and Sony is not far behind; and 

Discovery Communications founder 

John Hendricks has announced a new 

over-the-top service providing 

bandwidth-intensive programming. This 

year, Amazon took home two Golden 

Globes for its new series ‘‘Transparent.’’ 

4. The lesson of this period, and the 

overwhelming consensus on the record, 

is that carefully-tailored rules to protect 

Internet openness will allow investment 

and innovation to continue to flourish. 

Consistent with that experience and the 

record built in this proceeding, today 

we adopt carefully-tailored rules that 

would prevent specific practices we 

know are harmful to Internet 

openness—blocking, throttling, and 

paid prioritization—as well as a strong 

standard of conduct designed to prevent 

the deployment of new practices that 

would harm Internet openness. We also 

enhance our transparency rule to ensure 

that consumers are fully informed as to 

whether the services they purchase are 

delivering what they expect. 

5. Carefully-tailored rules need a 

strong legal foundation to survive and 

thrive. Today, we provide that 

foundation by grounding our open 

Internet rules in multiple sources of 

legal authority—including both section 

706 of the Telecommunications Act and 

Title II of the Communications Act. 

Moreover, we concurrently exercise the 

Commission’s forbearance authority to 

forbear from application of 27 

provisions of Title II of the 

Communications Act, and over 700 

Commission rules and regulations. This 

is a Title II tailored for the 21st century, 

and consistent with the ‘‘light-touch’’ 

regulatory framework that has facilitated 

the tremendous investment and 

innovation on the Internet. We 

expressly eschew the future use of 

prescriptive, industry-wide rate 

regulation. Under this approach, 

consumers can continue to enjoy 

unfettered access to the Internet over 

their fixed and mobile broadband 

connections, innovators can continue to 


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enjoy the benefits of a platform that 

affords them unprecedented access to 

hundreds of millions of consumers 

across the country and around the 

world, and network operators can 

continue to reap the benefits of their 

investments. 

6. Informed by the views of nearly 4 

million commenters, our staff-led 

roundtables, numerous ex parte 

presentations, meetings with individual 

Commissioners and staff, and more, our 

decision today—once and for all—puts 

into place strong, sustainable rules, 

grounded in multiple sources of our 

legal authority, to ensure that 

Americans reap the economic, social, 

and civic benefits of an open Internet 

today and into the future. 

II. Executive Summary 

7. The benefits of rules and policies 

protecting an open Internet date back 

over a decade and must continue. Just 

over a year ago, the D.C. Circuit in 

Verizon v. FCC struck down the 

Commission’s 2010 conduct rules 

against blocking and unreasonable 

discrimination. But the Verizon court 

upheld the Commission’s finding that 

Internet openness drives a ‘‘virtuous 

cycle’’ in which 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 Verizon court further 

affirmed the Commission’s conclusion 

that ‘‘broadband providers represent a 

threat to Internet openness and could 

act in ways that would ultimately 

inhibit the speed and extent of future 

broadband deployment.’’ 

8. Threats to Internet openness remain 

today. The record reflects that 

broadband providers hold all the tools 

necessary to deceive consumers, 

degrade content, or disfavor the content 

that they don’t like. The 2010 rules 

helped to deter such conduct while they 

were in effect. But, as Verizon frankly 

told the court at oral argument, but for 

the 2010 rules, it would be exploring 

agreements to charge certain content 

providers for priority service. Indeed, 

the wireless industry had a wellestablished record of trying to keep 

applications within a carrier-controlled 

‘‘walled garden’’ in the early days of 

mobile applications. That specific 

practice ended when Internet Protocol 

(IP) created the opportunity to leap the 

wall. But the Commission has continued 

to hear concerns about other broadband 

provider practices involving blocking or 

degrading third-party applications. 

9. Emerging Internet trends since 2010 

give us more, not less, cause for concern 

about such threats. First, mobile 

broadband networks have massively 

expanded since 2010. They are faster, 

more broadly deployed, more widely 

used, and more technologically 

advanced. At the end of 2010, there 

were about 70,000 devices in the U.S. 

that had LTE wireless connections. 

Today, there are more than 127 million. 

We welcome this tremendous 

investment and innovation in the 

mobile marketplace. With carefullytailored rules in place, that investment 

can continue to flourish and consumers 

can continue to enjoy unfettered access 

to the Internet over their mobile 

broadband connections. Indeed, mobile 

broadband is becoming an increasingly 

important pathway to the Internet 

independent of any fixed broadband 

connections consumers may have, given 

that mobile broadband is not a full 

substitute for fixed broadband 

connections. And consumers must be 

protected, for example from mobile 

commercial practices masquerading as 

‘‘reasonable network management.’’ 

Second, and critically, the growth of 

online streaming video services has 

spurred further evolution of the 

Internet. Currently, video is the 

dominant form of traffic on the Internet. 

These video services directly confront 

the video businesses of the very 

companies that supply them broadband 

access to their customers. 

10. The Commission, in its May 

Notice of Proposed Rulemaking, asked a 

fundamental question: ‘‘What is the 

right public policy to ensure that the 

Internet remains open?’’ It proposed to 

enhance the transparency rule, and 

follow the Verizon court’s blueprint by 

relying on section 706 to adopt a noblocking rule and a requirement that 

broadband providers engage in 

‘‘commercially reasonable’’ practices. 

The Commission also asked about 

whether it should adopt other brightline rules or different standards using 

other sources of Commission authority, 

including Title II. And if Title II were 

to apply, the Commission asked about 

how it should exercise its authority to 

forbear from Title II obligations. It asked 

whether mobile services should also be 

classified under Title II. 

11. Three overarching objectives have 

guided us in answering these questions, 

based on the vast record before the 

Commission: America needs more 

broadband, better broadband, and open 

broadband networks. These goals are 

mutually reinforcing, not mutually 

exclusive. Without an open Internet, 

there would be less broadband 

investment and deployment. And, as 

discussed further below, all three are 

furthered through the open Internet 

rules and balanced regulatory 

framework we adopt today. (Consistent 

with the Verizon court’s analysis, this 

Order need not conclude that any 

specific market power exists in the 

hands of one or more broadband 

providers in order to create and enforce 

these rules. Thus, these rules do not 

address, and are not designed to deal 

with, the acquisition or maintenance of 

market power or its abuse, real or 

potential. Moreover, it is worth noting 

that the Commission acts in a manner 

that is both complementary to the work 

of the antitrust agencies and supported 

by their application of antitrust laws. 

See generally 47 U.S.C. 152(b) 

(‘‘[N]othing in this Act . . . shall be 

construed to modify, impair, or 

supersede the applicability of any of the 

antitrust laws.’’). Nothing in this Order 

in any way precludes the Antitrust 

Division of the Department of Justice or 

the Commission itself from fulfilling 

their respective responsibilities under 

section 7 of the Clayton Act (15 U.S.C. 

18), or the Commission’s public interest 

standard as it assesses prospective 

transactions.) 

12. In enacting the Administrative 

Procedure Act (APA), Congress 

instructed expert agencies conducting 

rulemaking proceedings to ‘‘give 

interested persons an opportunity to 

participate in the rule making through 

submission of written data, views, or 

arguments.’’ It is public comment that 

cements an agency’s expertise. As was 

explained in the seminal report that led 

to the enactment of the APA: 

The reason for [an administrative agency’s] 

existence is that it is expected to bring to its 

task greater familiarity with the subject than 

legislators, dealing with many subjects, can 

have. But its knowledge is rarely complete, 

and it must always learn the frequently 

clashing viewpoints of those whom its 

regulations will affect. 

13. Congress could not have imagined 

when it enacted the APA almost seventy 

years ago that the day would come 

when nearly 4 million Americans would 

exercise their right to comment on a 

proposed rulemaking. But that is what 

has happened in this proceeding and it 

is a good thing. The Commission has 

listened and it has learned. Its expertise 

has been strengthened. Public input has 

‘‘improve[d] the quality of agency 

rulemaking by ensuring that agency 

regulations will be ‘tested by exposure 

to diverse public comment.’ ’’ There is 

general consensus in the record on the 

need for the Commission to provide 

certainty with clear, enforceable rules. 

There is also general consensus on the 

need to have such rules. Today the 

Commission, informed by all of those 

views, makes a decision grounded in the 

record. The Commission has considered 


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the arguments, data, and input provided 

by the commenters, even if not in 

agreement with the particulars of this 

Order; that public input has created a 

robust record, enabling the Commission 

to adopt new rules that are clear and 

sustainable. 

A. Strong Rules That Protect Consumers 

From Past and Future Tactics That 

Threaten the Open Internet 

1. Clear, Bright-Line Rules 

14. Because the record 

overwhelmingly supports adopting rules 

and demonstrates that three specific 

practices invariably harm the open 

Internet—Blocking, Throttling, and Paid 

Prioritization—this Order bans each of 

them, applying the same rules to both 

fixed and mobile broadband Internet 

access service. 

15. No Blocking. Consumers who 

subscribe to a retail broadband Internet 

access service must get what they have 

paid for—access to all (lawful) 

destinations on the Internet. This 

essential and well-accepted principle 

has long been a tenet of Commission 

policy, stretching back to its landmark 

decision in Carterfone, which protected 

a customer’s right to connect a 

telephone to the monopoly telephone 

network. Thus, this Order adopts a 

straightforward ban: 

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. 

16. No Throttling. The 2010 open 

Internet rule against blocking contained 

an ancillary prohibition against the 

degradation of lawful content, 

applications, services, and devices, on 

the ground that such degradation would 

be tantamount to blocking. This Order 

creates a separate rule to guard against 

degradation targeted at specific uses of 

a customer’s broadband connection: 

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. 

17. The ban on throttling is necessary 

both to fulfill the reasonable 

expectations of a customer who signs up 

for a broadband service that promises 

access to all of the lawful Internet, and 

to avoid gamesmanship designed to 

avoid the no-blocking rule by, for 

example, rendering an application 

effectively, but not technically, 

unusable. It prohibits the degrading of 

Internet traffic based on source, 

destination, or content. (To be clear, the 

protections of the no-blocking and nothrottling rules apply to particular 

classes of applications, content and 

services as well as particular 

applications, content, and services.) It 

also specifically prohibits conduct that 

singles out content competing with a 

broadband provider’s business model. 

18. No Paid Prioritization. Paid 

prioritization occurs when a broadband 

provider accepts payment (monetary or 

otherwise) to manage its network in a 

way that benefits particular content, 

applications, services, or devices. To 

protect against ‘‘fast lanes,’’ this Order 

adopts a rule that establishes that: 

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. (Unlike the no-blocking and nothrottling rules, there is no ‘‘reasonable 

network management’’ exception to the paid 

prioritization rule because paid prioritization 

is inherently a business practice rather than 

a network management practice.) 

19. The record demonstrates the need 

for strong action. The Verizon court 

itself noted that broadband networks 

have ‘‘powerful incentives to accept fees 

from edge providers, either in return for 

excluding their competitors or for 

granting them prioritized access to end 

users.’’ Mozilla, among many such 

commenters, explained that 

‘‘[p]rioritization . . . inherently creates 

fast and slow lanes.’’ Although there are 

arguments that some forms of paid 

prioritization could be beneficial, the 

practical difficulty is this: The threat of 

harm is overwhelming, case-by-case 

enforcement can be cumbersome for 

individual consumers or edge providers, 

and there is no practical means to 

measure the extent to which edge 

innovation and investment would be 

chilled. And, given the dangers, there is 

no room for a blanket exception for 

instances where consumer permission is 

buried in a service plan—the threats of 

consumer deception and confusion are 

simply too great. 

2. No Unreasonable Interference or 

Unreasonable Disadvantage to 

Consumers or Edge Providers 

20. The key insight of the virtuous 

cycle is that broadband providers have 

both the incentive and the ability to act 

as gatekeepers standing between edge 

providers and consumers. As 

gatekeepers, they can block access 

altogether; they can target competitors, 

including competitors to their own 

video services; and they can extract 

unfair tolls. Such conduct would, as the 

Commission concluded in 2010, 

‘‘reduce the rate of innovation at the 

edge and, in turn, the likely rate of 

improvements to network 

infrastructure.’’ In other words, when a 

broadband provider acts as a gatekeeper, 

it actually chokes consumer demand for 

the very broadband product it can 

supply. 

21. The bright-line bans on blocking, 

throttling, and paid prioritization will 

go a long way to preserve the virtuous 

cycle. But not all the way. Gatekeeper 

power can be exercised through a 

variety of technical and economic 

means, and without a catch-all standard, 

it would be that, as Benjamin Franklin 

said, ‘‘a little neglect may breed great 

mischief.’’ Thus, the Order adopts the 

following standard: 

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. Reasonable 

network management shall not be considered 

a violation of this rule. 

22. This ‘‘no unreasonable 

interference/disadvantage’’ standard 

protects free expression, thus fulfilling 

the congressional policy 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.’’ And the standard will permit 

considerations of asserted benefits of 

innovation as well as threatened harm 

to end users and edge providers. 

3. Enhanced Transparency 

23. The Commission’s 2010 

transparency rule, upheld by the 

Verizon court, remains in full effect: 

A person engaged in the provision of 

broadband Internet access service shall 

publicly disclose accurate information 

regarding the network management practices, 

performance, and commercial terms of its 

broadband Internet access services sufficient 

for consumers to make informed choices 

regarding use of such services and for 

content, application, service, and device 

providers to develop, market, and maintain 

Internet offerings. 

24. Today’s Order reaffirms the 

importance of ensuring transparency, so 

that consumers are fully informed about 


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the Internet access they are purchasing 

and so that edge providers have the 

information they need to understand 

whether their services will work as 

advertised. To do that, the Order builds 

on the strong foundation established in 

2010 and enhances the transparency 

rule for both end users and edge 

providers, including by adopting a 

requirement that broadband providers 

always must disclose promotional rates, 

all fees and/or surcharges, and all data 

caps or data allowances; adding packet 

loss as a measure of network 

performance that must be disclosed; and 

requiring specific notification to 

consumers that a ‘‘network practice’’ is 

likely to significantly affect their use of 

the service. Out of an abundance of 

caution and in response to a request by 

the American Cable Association, we 

also adopt a temporary exemption from 

these enhancements for small providers 

(defined for the purposes of the 

temporary exception as providers with 

100,000 or fewer subscribers), and we 

direct our Consumer & Governmental 

Affairs Bureau to adopt an Order by 

December 15, 2015 concerning whether 

to make the exception permanent and, 

if so, the appropriate definition of 

‘‘small.’’ Lastly, we create for all 

providers a ‘‘safe harbor’’ process for the 

format and nature of the required 

disclosure to consumers, which we 

believe will result in more effective 

presentation of consumer-focused 

information by broadband providers. 

4. Scope of the Rules 

25. The open Internet rules described 

above apply to both fixed and mobile 

broadband Internet access service. 

Consistent with the 2010 Order, today’s 

Order applies its rules to the consumerfacing service that broadband networks 

provide, which is known as ‘‘broadband 

Internet access service’’ (BIAS) (We note 

that our use of the term ‘‘broadband’’ in 

this Order includes but is not limited to 

services meeting the threshold for 

‘‘advanced telecommunications 

capability,’’ as defined in section 706 of 

the Telecommunications Act of 1996, as 

amended. 47 U.S.C. 1302(b). Section 

706 defines that term as ‘‘high-speed, 

switched, broadband 

telecommunications capability that 

enables users to originate and receive 

high-quality voice, data, graphics, and 

video telecommunications using any 

technology.’’ 47 U.S.C. 1302(d)(1). The 

2015 Broadband Progress Report 

specifically notes that ‘‘advanced 

telecommunications capability,’’ while 

sometimes referred to as ‘‘broadband,’’ 

differs from the Commission’s use of the 

term ‘‘broadband’’ in other contexts. 

2015 Broadband Progress Report at n.1 

(rel. Feb. 4, 2015)) and is defined to be: 

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 dialup 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. 

26. As in 2010, BIAS does not include 

enterprise services, virtual private 

network services, hosting, or data 

storage services. Further, we decline to 

apply the open Internet rules to 

premises operators to the extent they 

may be offering broadband Internet 

access service as we define it today. 

27. In defining this service we make 

clear that we are responding to the 

Verizon court’s conclusion that 

broadband providers ‘‘furnish a service 

to edge providers’’ (and that this service 

was being treated as common carriage 

per se). As discussed further below, we 

make clear that broadband Internet 

access service encompasses this service 

to edge providers. Broadband providers 

sell retail customers the ability to go 

anywhere (lawful) on the Internet. Their 

representation that they will transport 

and deliver traffic to and from all or 

substantially all Internet endpoints 

includes the promise to transmit traffic 

to and from those Internet endpoints 

back to the user. 

28. Interconnection. BIAS involves 

the exchange of traffic between a 

broadband Internet access provider and 

connecting networks. The 

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. 

29. As discussed below, we find that 

broadband Internet access service is a 

‘‘telecommunications service’’ and 

subject to sections 201, 202, and 208 

(along with key enforcement 

provisions). As a result, commercial 

arrangements for the exchange of traffic 

with a broadband Internet access 

provider are within the scope of Title II, 

and the Commission will be available to 

hear disputes raised under sections 201 

and 202 on a case-by-case basis: 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 

Content Delivery Networks (CDNs), that 

act on behalf of smaller edge providers. 

30. But this Order does not apply the 

open Internet rules to interconnection. 

Three factors are critical in informing 

this approach to interconnection. First, 

the nature of Internet traffic, driven by 

massive consumption of video, has 

challenged traditional arrangements— 

placing more emphasis on the use of 

CDNs or even direct connections 

between content providers (like Netflix 

or Google) and last-mile broadband 

providers. Second, it is clear that 

consumers have been subject to 

degradation resulting from commercial 

disagreements, perhaps most notably in 

a series of disputes between Netflix and 

large last-mile broadband providers. 

But, third, the causes of past disruption 

and—just as importantly—the potential 

for future degradation through 

interconnection disputes—are reflected 

in very different narratives in the 

record. 

31. While we have more than a 

decade’s worth of experience with lastmile practices, we lack a similar depth 

of background in the Internet traffic 

exchange context. Thus, we find that the 

best approach is to watch, learn, and act 

as required, but not intervene now, 

especially not with prescriptive rules. 

This Order—for the first time—provides 

authority to consider claims involving 

interconnection, a process that is sure to 

bring greater understanding to the 

Commission. 

32. Reasonable Network Management. 

As with the 2010 rules, this Order 

contains an exception for reasonable 

network management, which applies to 

all but the paid prioritization rule 

(which, by definition, is not a means of 

managing a network): 

A network management practice is a 

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. 

33. Recently, significant concern has 

arisen when mobile providers’ have 

attempted to justify certain practices as 

reasonable network management 

practices, such as applying speed 

reductions to customers using 

‘‘unlimited data plans’’ in ways that 

effectively force them to switch to price 

plans with less generous data 

allowances. For example, in the summer 

of 2014, Verizon announced a change to 

its ‘‘unlimited’’ data plan for LTE 

customers, which would have limited 

the speeds of LTE customers using 


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grandfathered ‘‘unlimited’’ plans once 

they reached a certain level of usage 

each month. Verizon briefly described 

this change as within the scope of 

‘‘reasonable network management,’’ 

before changing course and 

withdrawing the change. 

34. With mobile broadband service 

now subject to the same rules as fixed 

broadband service, the Order expressly 

recognizes that evaluation of network 

management practices will take into 

account the additional challenges 

involved in the management of mobile 

networks, including the dynamic 

conditions under which they operate. It 

also recognizes the specific network 

management needs of other 

technologies, such as unlicensed Wi-Fi 

networks. 

35. Non-Broadband Internet Access 

Service Data Services. The 2010 rules 

included an exception for ‘‘specialized 

services.’’ This Order likewise 

recognizes that some data services—like 

facilities-based VoIP offerings, heart 

monitors, or energy consumption 

sensors—may be offered by a broadband 

provider but do not provide access to 

the Internet generally. The term 

‘‘specialized services’’ can be confusing 

because the critical point is not whether 

the services are ‘‘specialized;’’ it is that 

they are not broadband Internet access 

service. IP-services that do not travel 

over broadband Internet access service, 

like the facilities-based VoIP services 

used by many cable customers, are not 

within the scope of the open Internet 

rules, which protect access or use of 

broadband Internet access service. 

Nonetheless, these other non-broadband 

Internet access service data services 

could be provided in a manner that 

undermines the purpose of the open 

Internet rules and that will not be 

permitted. The Commission expressly 

reserves the authority to take action if a 

service is, in fact, providing the 

functional equivalent of broadband 

Internet access service or is being used 

to evade the open Internet rules. The 

Commission will vigilantly watch for 

such abuse, and its actions will be aided 

by the existing transparency 

requirement that non-broadband 

Internet access service data services be 

disclosed. 

5. Enforcement 

36. The Commission may enforce the 

open Internet rules through 

investigation and the processing of 

complaints (both formal and informal). 

In addition, the Commission may 

provide guidance through the use of 

enforcement advisories and advisory 

opinions, and it will appoint an 

ombudsperson. In order to provide the 

Commission with additional 

understanding, particularly of technical 

issues, the Order delegates to the 

Enforcement Bureau the authority to 

request a written opinion from an 

outside technical organization or 

otherwise to obtain objective advice 

from industry standard-setting bodies or 

similar organizations. 

B. Promoting Investment With a Modern 

Title II 

37. Today, our forbearance approach 

results in over 700 codified rules being 

inapplicable, a ‘‘light-touch’’ approach 

for the use of Title II. This includes no 

unbundling of last-mile facilities, no 

tariffing, no rate regulation, and no cost 

accounting rules, which results in a 

carefully tailored application of only 

those Title II provisions found to 

directly further the public interest in an 

open Internet and more, better, and 

open broadband. Nor will our actions 

result in the imposition of any new 

federal taxes or fees; the ability of states 

to impose fees on broadband is already 

limited by the congressional Internet tax 

moratorium. 

38. This is Title II tailored for the 21st 

Century. Unlike the application of Title 

II to incumbent wireline companies in 

the 20th Century, a swath of utility-style 

provisions (including tariffing) will not 

be applied. Indeed, there will be fewer 

sections of Title II applied than have 

been applied to Commercial Mobile 

Radio Service (CMRS), where Congress 

expressly required the application of 

sections 201, 202, and 208, and 

permitted the Commission to forbear 

from others. In fact, Title II has never 

been applied in such a focused way. 

39. History demonstrates that this 

careful approach to the use of Title II 

will not impede investment. First, 

mobile voice services have been 

regulated under a similar light-touch 

Title II approach since 1994—and 

investment and usage boomed. For 

example, between 1993 and 2009 (while 

voice was the primary driver of mobile 

revenues), the mobile industry invested 

more than $271 billion in building out 

networks, during a time in which 

industry revenues increased by 1300 

percent and subscribership grew over 

1600 percent. Moreover, more recently, 

Verizon Wireless has invested tens of 

billions of dollars in deploying mobile 

wireless services since being subject to 

the 700 MHz C Block open access rules, 

which overlap in significant parts with 

the open Internet rules we adopt today. 

But that is not all. Today, key provisions 

of Title II apply to certain enterprise 

broadband services that AT&T has 

described as ‘‘the epicenter of the 

broadband investment’’ the Commission 

seeks to promote. Title II has been 

maintained by more than 1000 rural 

local exchange carriers that have chosen 

to offer their DSL and fiber broadband 

services as common carrier offerings. 

And, of course, wireline DSL was 

regulated as a common-carrier service 

until 2005—including a period in the 

late ’90s and the first five years of this 

century that saw the highest levels of 

wireline broadband infrastructure 

investment to date. 

40. In any event, recent events have 

demonstrated that our rules will not 

disrupt capital markets or investment. 

Following recent discussions of the 

potential application of Title II to 

consumer broadband, investment 

analysts have issued reports concluding 

that Title II with appropriate 

forbearance is unlikely to alter 

broadband provider conduct or have 

any negative effect on their value or 

future profitability. Executives from 

large broadband providers have also 

repeatedly represented to investors that 

the prospect of regulatory action will 

not influence their investment strategies 

or long-term profitability; indeed, Sprint 

has gone so far to say that it ‘‘does not 

believe that a light touch application of 

Title II, including appropriate 

forbearance, would harm the continued 

investment in, and deployment of, 

mobile broadband services.’’ Finally, the 

recent AWS auction, conducted under 

the prospect of Title II regulation, 

generated bids (net of bidding credits) of 

more than $41 billion—further 

demonstrating that robust investment is 

not inconsistent with a light-touch Title 

II regime. 

C. Sustainable Open Internet Rules 

41. We ground our open Internet rules 

in multiple sources of legal authority— 

including both section 706 and Title II 

of the Communications Act. The 

Verizon court upheld the Commission’s 

use of section 706 as a substantive 

source of legal authority to adopt open 

Internet protections. But it held that, 

‘‘[g]iven the Commission’s still-binding 

decision to classify broadband providers 

. . . as providers of ‘information 

services,’ ’’ open Internet protections 

that regulated broadband providers as 

common carriers would violate the Act. 

Rejecting the Commission’s argument 

that broadband providers only served 

retail consumers, the Verizon court 

went on to explain that ‘‘broadband 

providers furnish a service to edge 

providers, thus undoubtedly 

functioning as edge providers’ 

‘carriers,’ ’’ and held that the 2010 no 

blocking and no unreasonable 

discrimination rules impermissibly 


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‘‘obligated [broadband providers] to act 

as common carriers.’’ 

42. The Verizon decision thus made 

clear that section 706 affords the 

Commission substantive authority, and 

that open Internet protections are within 

the scope of that authority. And this 

Order relies on section 706 for the open 

Internet rules. But, in light of Verizon, 

absent a classification of broadband 

providers as providing a 

‘‘telecommunications service,’’ the 

Commission could only rely on section 

706 to put in place open Internet 

protections that steered clear of 

regulating broadband providers as 

common carriers per se. Thus, in order 

to bring a decade of debate to a certain 

conclusion, we conclude that the best 

path is to rely on all available sources 

of legal authority—while applying them 

with a light touch consistent with 

further investment and broadband 

deployment. Taking the Verizon 

decision’s implicit invitation, we revisit 

the Commission’s classification of the 

retail broadband Internet access service 

as an information service and clarify 

that this service encompasses the socalled ‘‘edge service.’’ 

43. Exercising our delegated authority 

to interpret ambiguous terms in the 

Communications Act, as confirmed by 

the Supreme Court in Brand X, today’s 

Order concludes that the facts in the 

market today are very different from the 

facts that supported the Commission’s 

2002 decision to treat cable broadband 

as an information service and its 

subsequent application to fixed and 

mobile broadband services. Those prior 

decisions were based largely on a 

factual record compiled over a decade 

ago, during an earlier time when, for 

example, many consumers would use 

homepages supplied by their broadband 

provider. In fact, the Brand X Court 

explicitly acknowledged that the 

Commission had previously classified 

the transmission service, which 

broadband providers offer, as a 

telecommunications service and that the 

Commission could return to that 

classification if it provided an adequate 

justification. Moreover, a number of 

parties who, in this proceeding, now 

oppose our reclassification of broadband 

Internet access service, previously 

argued that cable broadband should be 

deemed a telecommunications service. 

As the record reflects, times and usage 

patterns have changed and it is clear 

that broadband providers are offering 

both consumers and edge providers 

straightforward transmission 

capabilities that the Communications 

Act defines as a ‘‘telecommunications 

service.’’ 

44. The Brand X decision made 

famous the metaphor of pizza delivery. 

Justice Scalia, in dissent, concluded that 

the Commission had exceeded its legal 

authority by classifying cable-modem 

service as an ‘‘information service.’’ To 

make his point, Justice Scalia described 

a pizzeria offering delivery services as 

well as selling pizzas and concluded 

that, similarly—broadband providers 

were offering ‘‘telecommunications 

services’’ even if that service was not 

offered on a ‘‘stand-alone basis.’’ 

45. To take Justice Scalia’s metaphor 

a step further, suppose that in 2014, the 

pizzeria owners discovered that other 

nearby restaurants did not deliver their 

food and thus concluded that the pizzadelivery drivers could generate more 

revenue by delivering from any 

neighborhood restaurant (including 

their own pizza some of the time). 

Consumers would clearly understand 

that they are being offered a delivery 

service. 

46. Today, broadband providers are 

offering stand-alone transmission 

capacity and that conclusion is not 

changed even if, as Justice Scalia 

recognized, other products may be 

offered at the same time. The trajectory 

of technology in the decade since the 

Brand X decision has been towards 

greater and greater modularity. For 

example, consumers have considerable 

power to combine their mobile 

broadband connections with the device, 

operating systems, applications, Internet 

services, and content of their choice. 

Today, broadband Internet access 

service is fundamentally understood by 

customers as a transmission platform 

through which consumers can access 

third-party content, applications, and 

services of their choosing. 

47. Based on this updated record, this 

Order concludes that the retail 

broadband Internet access service 

available today is best viewed as 

separately identifiable offers of (1) a 

broadband Internet access service that is 

a telecommunications service (including 

assorted functions and capabilities used 

for the management and control of that 

telecommunication service) and (2) 

various ‘‘add-on’’ applications, content, 

and services that generally are 

information services. This finding more 

than reasonably interprets the 

ambiguous terms in the 

Communications Act, best reflects the 

factual record in this proceeding, and 

will most effectively permit the 

implementation of sound policy 

consistent with statutory objectives, 

including the adoption of effective open 

Internet protections. 

48. This Order also revisits the 

Commission’s prior classification of 

mobile broadband Internet access 

service as a private mobile service, 

which cannot be subject to common 

carrier regulation, and finds that it is 

best viewed as a commercial mobile 

service or, in the alternative, the 

functional equivalent of commercial 

mobile service. Under the statutory 

definition, commercial mobile services 

must be ‘‘interconnected with the public 

switched network (as such terms are 

defined by regulation by the 

Commission).’’ Consistent with that 

delegation of authority to define these 

terms, and with the Commission’s 

previous recognition that the public 

switched network will grow and change 

over time, this Order updates the 

definition of public switched network to 

reflect current technology, by including 

services that use public IP addresses. 

Under this revised definition, the Order 

concludes that mobile broadband 

Internet access service is interconnected 

with the public switched network. In 

the alternative, the Order concludes that 

mobile broadband Internet access 

service is the functional equivalent of 

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, including voice, on 

their mobile device. 

49. By classifying broadband Internet 

access service under Title II of the Act, 

in our view the Commission addresses 

any limitations that past classification 

decisions placed on the ability to adopt 

strong open Internet rules, as 

interpreted by the D.C. Circuit in the 

Verizon case. 

50. Having classified broadband 

Internet access service as a 

telecommunications service, we 

respond to the Verizon court’s holding, 

supporting our open Internet rules 

under the Commission’s Title II 

authority and removing any common 

carriage limitation on the exercise of our 

section 706 authority. For mobile 

broadband services, we also ground the 

open Internet rules in our Title III 

authority to protect the public interest 

through the management of spectrum 

licensing. 

D. Broad Forbearance 

51. In finding that broadband Internet 

access service is subject to Title II, we 

simultaneously exercise the 

Commission’s forbearance authority to 

forbear from 30 statutory provisions and 

render over 700 codified rules 

inapplicable, to establish a light-touch 

regulatory framework tailored to 

preserving those provisions that 

advance our goals of more, better, and 


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open broadband. We thus forbear from 

the vast majority of rules adopted under 

Title II. We do not, however, forbear 

from sections 201, 202, and 208 (or from 

related enforcement provisions), 

(Specifically, we do not forbear from the 

enforcement authorities set forth in 

sections 206, 207, 208, 209, 216, and 

217. To preserve existing CALEA 

obligations that already apply to 

broadband Internet access service, we 

also decline to forbear from section 

229.) which are necessary to support 

adoption of our open Internet rules. We 

also grant extensive forbearance, 

minimizing the burdens on broadband 

providers while still adequately 

protecting the public. 

52. In addition, we do not forbear 

from a limited number of sections 

necessary to ensure consumers are 

protected, promote competition, and 

advance universal access, all of which 

will foster network investment, thereby 

helping to promote broadband 

deployment. 

53. Section 222: Protecting Consumer 

Privacy. Ensuring the privacy of 

customer information both directly 

protects consumers from harm and 

eliminates consumer concerns about 

using the Internet that could deter 

broadband deployment. Among other 

things, section 222 imposes a duty on 

every telecommunications carrier to 

take reasonable precautions to protect 

the confidentiality of its customers’ 

proprietary information. We take this 

mandate seriously. For example, the 

Commission recently took enforcement 

action under section 222 (and section 

201(b)) against two telecommunications 

companies that stored customers’ 

personal information, including social 

security numbers, on unprotected, 

unencrypted Internet servers publicly 

accessible using a basic Internet search. 

This unacceptably exposed these 

consumers to the risk of identity theft 

and other harms. 

54. As the Commission has 

recognized, ‘‘[c]onsumers’ privacy needs 

are no less important when consumers 

communicate over and use broadband 

Internet access than when they rely on 

[telephone] services.’’ Thus, this Order 

finds that consumers concerned about 

the privacy of their personal 

information will be more reluctant to 

use the Internet, stifling Internet service 

competition and growth. Application of 

section 222’s protections will help spur 

consumer demand for those Internet 

access services, in turn ‘‘driving 

demand for broadband connections, and 

consequently encouraging more 

broadband investment and 

deployment,’’ consistent with the goals 

of the 1996 Act. 

55. Sections 225/255/251(a)(2): 

Ensuring Disabilities Access. We do not 

forbear from those provisions of Title II 

that ensure access to broadband Internet 

access service by individuals with 

disabilities. All Americans, including 

those with disabilities, must be able to 

reap the benefits of an open Internet, 

and ensuring access for these 

individuals will further the virtuous 

cycle of consumer demand, innovation, 

and deployment. This Order thus 

concludes that application of sections 

225, 255, and 251(a)(2) is necessary to 

protect consumers and furthers the 

public interest, as explained in greater 

detail below. 

56. Section 224: Ensuring 

Infrastructure Access. For broadband 

Internet access service, we do not 

forbear from section 224 and the 

Commission’s associated procedural 

rules (to the extent they apply to 

telecommunications carriers and 

services and are, thus, within the 

Commission’s forbearance authority). 

Section 224 of the Act governs the 

Commission’s regulation of pole 

attachments. In particular, section 

224(f)(1) requires utilities to provide 

cable system operators and 

telecommunications carriers the right of 

‘‘nondiscriminatory access to any pole, 

duct, conduit, or right-of-way owned or 

controlled’’ by a utility. Access to poles 

and other infrastructure is crucial to the 

efficient deployment of communications 

networks including, and perhaps 

especially, new entrants. 

57. Section 254: Promoting Universal 

Broadband. Section 254 promotes the 

deployment and availability of 

communications networks to all 

Americans, including rural and lowincome Americans—furthering our goals 

of more and better broadband. With the 

exception of section 254(d), (g), and (k) 

as discussed below, we therefore do not 

find the statutory test for forbearance 

from section 254 (and the related 

provision in section 214(e)) is met. We 

recognize that supporting broadbandcapable networks is already a key 

component of Commission’s current 

universal service policies. The Order 

concludes, however, that directly 

applying section 254 provides both 

more legal certainty for the 

Commission’s prior decisions to offer 

universal service subsidies for 

deployment of broadband networks and 

adoption of broadband services and 

more flexibility going forward. 

58. We partially forbear from section 

254(d) and associated rules insofar as 

they would immediately require 

mandatory universal service 

contributions associated with 

broadband Internet access service. 

59. Below, we first adopt three brightline rules banning blocking, throttling, 

and paid prioritization, and make clear 

the no-unreasonable interference/

disadvantage standard by which the 

Commission will evaluate other 

practices, according to their facts. These 

rules are grounded in multiple sources 

of statutory authority, including section 

706 and Titles II and III of the 

Communications Act. Second, based on 

a current factual record, we reclassify 

broadband Internet access service as a 

telecommunications service under Title 

II. And, third, guided by our goals of 

more, better, and open broadband, we 

exercise our forbearance authority to put 

in place a ‘‘light touch’’ Title II 

regulatory framework that protects 

consumers and innovators, without 

deterring investment. 

III. Report and Order on Remand: 

Protecting and Promoting the Open 

Internet 

A. History of Openness Regulation 

60. These rules are the latest in a long 

line of actions by the Commission to 

ensure that American communications 

networks develop in ways that foster 

economic competition, technological 

innovation, and free expression. Ever 

since the landmark 1968 Carterfone 

decision, the Commission has 

recognized that communications 

networks are most vibrant, and best able 

to serve the public interest, when 

consumers are empowered to make their 

own decisions about how networks are 

to be accessed and utilized. Openness 

regulation aimed at safeguarding 

consumer choice has therefore been a 

hallmark of Commission policy for over 

forty years. 

61. In Carterfone, the Commission 

confronted AT&T’s practice of 

preventing consumers from attaching 

any equipment not supplied by AT&T to 

their home telephones, even if the 

attachment did not put the underlying 

network at risk. Finding AT&T’s 

‘‘foreign attachment’’ provisions 

unreasonable and unlawful, the 

Commission ruled that AT&T customers 

had the right to connect useful devices 

of their choosing to their home 

telephones, provided these devices did 

not adversely affect the telephone 

network. 

62. Carterfone and subsequent 

regulatory actions by the Commission 

severed the market for customer 

premises equipment (CPE) from that for 

telephone service. In doing so, the 

Commission allowed new participants 

and new ideas into the market, setting 

the stage for a wave of innovation that 

produced technologies such as the 


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Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19745 

answering machine, fax machine, and 

modem—thereby removing a barrier to 

the development of the packet switched 

network that would eventually become 

the Internet. 

63. Commitment to robust 

competition and open networks defined 

Commission policy at the outset of the 

digital revolution as well. In a series of 

influential decisions, known 

collectively as the Computer Inquiries, 

the Commission established a flexible 

regulatory framework to support 

development of the nascent information 

economy. The Computer Inquiries 

decisions separated the market for 

information services from the 

underlying network infrastructure, and 

imposed firm non-discrimination rules 

for network access. This system 

prevented network owners from 

engaging in anti-competitive behavior 

and spurred the development and 

adoption of new technologies. 

64. The principles of open access, 

competition, and consumer choice 

embodied in Carterfone and the 

Computer Inquires have continued to 

guide Commission policy in the Internet 

era. As former Chairman Michael 

Powell noted in 2004, ‘‘ensuring that 

consumers can obtain and use the 

content, applications and devices they 

want . . . is critical to unlocking the vast 

potential of the broadband Internet.’’ In 

recognition of this fact, in 2005, the 

Commission unanimously approved the 

Internet Policy Statement, which laid 

out four guiding principles designed to 

encourage broadband deployment and 

‘‘preserve and promote the open and 

interconnected nature of the Internet.’’ 

These principles sought to ensure that 

consumers had the right to access and 

use the lawful content, applications, 

and devices of their choice online, and 

to do so in an Internet ecosystem 

defined by competitive markets. 

65. From 2005 to 2011, the principles 

embodied in the Internet Policy 

Statement were incorporated as 

conditions by the Commission into 

several merger orders and a key 700 

MHz license, including the SBC/AT&T, 

Verizon/MCI, and Comcast/NBCU 

mergers and the Upper 700 MHz C block 

open platform requirements. 

Commission approval of these 

transactions was expressly conditioned 

on compliance with the Internet Policy 

Statement. During this time, open 

Internet principles were also applied to 

particular enforcement proceedings 

aimed at addressing anti-competitive 

behavior by service providers. 

66. In June 2010, following a D.C. 

Circuit decision invalidating the 

Commission’s exercise of ancillary 

authority to provide consumers basic 

protections in using broadband Internet 

services, the Commission initiated a 

Notice of Inquiry to ‘‘seek comment on 

our legal framework for broadband 

Internet service.’’ The Notice of Inquiry 

recognized that ‘‘the current legal 

classification of broadband Internet 

service is based on a record that was 

gathered a decade ago.’’ It sought 

comment on three separate alternative 

legal frameworks for classifying and 

regulating broadband Internet service: 

(1) As an information service, (2) as a 

telecommunications service ‘‘to which 

all the requirements of Title II of the 

Communications Act would apply,’’ and 

(3) solely as to the ‘‘Internet 

connectivity service,’’ as a 

telecommunications service with 

forbearance from most Title II 

obligations. The Notice of Inquiry 

sought comment on both wired and 

wireless broadband Internet services, 

‘‘as well as on other factual and legal 

issues specific to . . . wireless services 

that bear on their appropriate 

classification.’’ 

67. In December 2010, the 

Commission adopted the Open Internet 

Order (76 FR 59192–01, Sept. 23, 2011), 

a codification of the policy principles 

contained in the Internet Policy 

Statement. The Open Internet Order was 

based on broadly accepted Internet 

norms and the Commission’s long 

regulatory experience in preserving 

open and dynamic communications 

networks. The Order adopted three 

fundamental rules governing Internet 

service providers: (1) No blocking; (2) 

no unreasonable discrimination; and (3) 

transparency. The no-blocking rule and 

no-unreasonable discrimination rules 

prevented broadband service providers 

from deliberately interfering with 

consumers’ access to lawful content, 

applications, and services, while the 

transparency rule promoted informed 

consumer choice by requiring disclosure 

by service providers of critical 

information relating to network 

management practices, performance, 

and terms of service. 

68. The antidiscrimination rule 

contained in the Open Internet Order 

operated on a case-by-case basis, with 

the Commission evaluating the conduct 

of fixed broadband service providers 

based on a number of factors, including 

conformity with industry best practices, 

harm to competing services or end 

users, and impairment of free 

expression. This no unreasonable 

discrimination framework applied to 

commercial agreements between fixed 

broadband service providers and third 

parties to prioritize transmission of 

certain traffic to their subscribers. The 

Open Internet Order also specifically 

addressed paid prioritization 

arrangements. It did not entirely rule 

out the possibility of such agreements, 

but made clear that such ‘‘pay for 

priority’’ deals and the associated ‘‘paid 

prioritization’’ network practices were 

likely to be problematic in a number of 

respects. Paid prioritization 

‘‘represented a significant departure 

from historical and current practice’’ 

that threatened ‘‘great harm to 

innovation’’ online, particularly in 

connection with the market for new 

services by edge providers. Paid priority 

agreements were also viewed as a threat 

to non-commercial end users, 

‘‘including individual bloggers, 

libraries, schools, advocacy 

organizations, and other speakers’’ who 

would be less able to pay for priority 

service. Finally, paid prioritization was 

seen giving fixed broadband providers 

‘‘an incentive to limit the quality of 

service provided to non-prioritized 

traffic.’’ As a result of these concerns, 

the Commission explicitly stated in the 

Open Internet Order that it was 

‘‘unlikely that pay for priority would 

satisfy the ‘no unreasonable 

discrimination’ standard.’’ 

69. In order to maintain flexibility, the 

Commission tailored the rules contained 

in the Open Internet Order to fit the 

technical and economic realities of the 

broadband ecosystem. To this end, the 

restrictions on blocking and 

discrimination were made subject to an 

exception for ‘‘reasonable network 

management,’’ allowing service 

providers the freedom to address 

legitimate needs such as avoiding 

network congestion and combating 

harmful or illegal content. Additionally, 

in order to account for then-perceived 

differences between the fixed and 

mobile broadband markets, the Open 

Internet Order exempted mobile service 

providers from the anti-discrimination 

rule, and only barred mobile providers 

from blocking ‘‘consumers from 

accessing lawful Web sites’’ or 

‘‘applications that compete with the 

provider’s voice or video telephony 

services.’’ Lastly, the Open Internet 

Order made clear that the rules did not 

prohibit broadband providers from 

offering specialized services such as 

VoIP; instead, the Commission 

announced that it would continue to 

monitor such arrangements to ensure 

that they did not pose a threat to 

Internet openness. 

70. Verizon subsequently challenged 

the Open Internet Order in the U.S. 

Court of Appeals for the D.C. Circuit, 

arguing, among other things, that the 

Open Internet Order exceeded the 

Commission’s regulatory authority and 

violated the Act. In January 2014, the 


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D.C. Circuit upheld the Commission’s 

determination that section 706 of the 

Telecommunications Act of 1996 

granted the Commission authority to 

regulate broadband Internet service 

providers, and that the Commission had 

demonstrated a sound policy 

justification for the Open Internet Order. 

Specifically, the court sustained the 

Commission’s findings that ‘‘absent 

rules such as those set forth in the Open 

Internet Order, broadband providers 

represent a threat to Internet openness 

and could act in ways that would 

ultimately inhibit the speed and extent 

of future broadband deployment.’’ 

71. Despite upholding the 

Commission’s authority and the basic 

rationale supporting the Open Internet 

Order, the court struck down the noblocking and antidiscrimination rules as 

at odds with section 3(51) of the 

Communications Act, holding that it 

prohibits the Commission from 

exercising its section 706 authority to 

impose common carrier regulation on a 

service not classified as a 

‘‘telecommunications service,’’ and 

section 332(c)(2), which prohibits 

common carrier treatment of ‘‘private 

mobile services.’’ The D.C. Circuit 

vacated the no-blocking and 

antidiscrimination rules because it 

found that they impermissibly regulated 

fixed broadband providers as common 

carriers, which conflicted with the 

Commission’s prior classification of 

fixed broadband Internet access service 

as an ‘‘information service’’ rather than 

a telecommunications service. Likewise, 

the court found that the no-blocking 

rule as applied to mobile broadband 

conflicted with the Commission’s earlier 

classification of mobile broadband 

service as a private mobile service rather 

than a ‘‘commercial mobile service.’’ 

The Verizon court held that the ‘‘no 

unreasonable discrimination’’ standard 

adopted in the Open Internet Order was 

insufficiently distinguishable from the 

‘‘nondiscrimination’’ standard 

applicable to common carriers. Central 

to the court’s rationale was its finding 

that, as formulated in the Open Internet 

Order, both rules improperly limited 

fixed broadband Internet access 

providers’ ability to engage in 

‘‘individualized bargaining.’’ 

72. Following the D.C. Circuit’s 

ruling, on May 15, 2014 the Commission 

issued a Notice of Proposed Rulemaking 

(2014 Open Internet NPRM) to respond 

to the lack of conduct-based rules to 

protect and promote an open Internet 

following the D.C. Circuit’s opinion in 

Verizon v. FCC. The Commission began 

the NPRM with a fundamental question: 

‘‘What is the right public policy to 

ensure that the Internet remains open?’’ 

While the NPRM put forth various 

proposals, it sought broad comment on 

alternative paths to the right public 

policy solution—including areas such as 

the proper scope of the rules; the best 

ways to define, prevent, and treat 

violations of practices that may threaten 

an open Internet (including paid 

prioritization); enhancements to the 

transparency rule; and the appropriate 

source of legal authority to support new 

open Internet rules. 

73. The Commission took many steps 

to facilitate public engagement in 

response to the 2014 Open Internet 

NPRM—including the establishment of 

a dedicated email address to receive 

comments, a mechanism for submitting 

large numbers of comments in bulk via 

a Comma Separated Values (CSV) file, 

and the release of the entire record of 

comments and reply comments as Open 

Data in a machine-readable format, so 

that researchers, journalists, and other 

parties could analyze and create 

visualizations of the record. In addition, 

Commission staff hosted a series of 

roundtables covering a variety of topics 

related to the open Internet proceeding, 

including events focused on different 

policy approaches to protecting the 

open Internet, mobile broadband, 

enforcement issues, technology, 

broadband economics, and the legal 

issues surrounding the Commission’s 

proposals. 

74. The public seized on these 

opportunities to comment, submitting 

an unprecedented 3.7 million comments 

by the close of the reply comment 

period on September 15, 2014, with 

more submissions arriving after that 

date. This record-setting level of public 

engagement reflects the vital nature of 

Internet openness and the importance of 

our getting the answer right in this 

proceeding. Quantitative analysis of the 

comment pool reveals a number of key 

insights. For example, by some 

estimates, nearly half of all comments 

received by the Commission were 

unique. While there has been some 

public dispute as to the percentage of 

comments taking one position or 

another, it is clear that the majority of 

comments support Commission action 

to protect the open Internet. Comments 

regarding the continuing need for open 

Internet rules, their legal basis, and their 

substance formed the core of the overall 

body of comments. In particular, 

support for the reclassification of 

broadband Internet access under Title II, 

opposition to fast lanes and paid 

prioritization, and unease regarding the 

market power of broadband Internet 

access service providers were themes 

frequently addressed by commenters. In 

offering this summary, we do not mean 

to overlook the diversity of views 

reflected in the impressively large 

record in this proceeding. Most of all, 

we are grateful to the public for using 

the power of the open Internet to guide 

us in determining how best to protect it. 

B. The Continuing Need for Open 

Internet Protections 

75. In its remand of the Commission’s 

Open Internet Order, the D.C. Circuit 

affirmed the underlying basis for the 

Commission’s open Internet rules, 

holding that ‘‘the Commission [had] 

more than adequately supported and 

explained its conclusion that edge 

provider innovation leads to the 

expansion and improvement of 

broadband infrastructure.’’ The court 

also found ‘‘reasonable and grounded in 

substantial evidence’’ the Commission’s 

finding that Internet openness fosters 

the edge provider innovation that drives 

the virtuous cycle. The record on 

remand continues to convince us that 

broadband providers—including mobile 

broadband providers—have the 

incentives and ability to engage in 

practices that pose a threat to Internet 

openness, and as such, rules to protect 

the open nature of the Internet remain 

necessary. Today we take steps to 

ensure that the substantial benefits of 

Internet openness continue to be 

realized. 

1. An Open Internet Promotes 

Innovation, Competition, Free 

Expression, and Infrastructure 

Deployment 

76. In the 2014 Open Internet NPRM, 

we sought comment on and expressed 

our continued commitment to an 

important principle underlying the 

Commission’s prior policies—that the 

Internet’s openness promotes 

innovation, investment, competition, 

free expression, and other national 

broadband goals. The record before us 

convinces us that these findings, made 

by the Commission in 2010 and upheld 

by the D.C. Circuit, remain valid. If 

anything, the remarkable increases in 

investment and innovation seen in 

recent years—while the rules were in 

place—bear out the Commission’s view. 

For example, in addition to broadband 

infrastructure investment, there has 

been substantial growth in the digital 

app economy, video over broadband, 

and VoIP, as well as a rise in mobile ecommerce. Overall Internet adoption 

has also increased since 2010. Both 

within the network and at its edges, 

investment and innovation have 

flourished while the open Internet rules 

were in force. 

77. The record before us also 

overwhelmingly supports the 


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proposition that the Internet’s openness 

is critical to its ability to serve as a 

platform for speech and civic 

engagement, and that it can help close 

the digital divide by facilitating the 

development of diverse content, 

applications, and services. The record 

also supports the proposition that the 

Internet’s openness continues to enable 

a ‘‘virtuous [cycle] of innovation in 

which new uses of the network— 

including new content, applications, 

services, and devices—lead to increased 

end-user demand for broadband, which 

drives network improvements, which in 

turn lead to further innovative network 

uses.’’ End users experienced the 

benefits of Internet openness that 

stemmed from the Commission’s 2010 

open Internet rules—increased 

consumer choice, freedom of 

expression, and innovation. 

2. Broadband Providers Have the 

Incentive and Ability To Limit 

Openness 

78. Broadband providers 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. As discussed in more detail 

below, broadband providers (including 

mobile broadband providers) 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. 

a. Economic Incentives and Ability 

79. In the 2014 Open Internet NPRM, 

we sought to update the record with 

information about new and continuing 

incentives for broadband providers to 

limit Internet openness. As explained in 

detail in the Open Internet Order, 

broadband providers not only have the 

incentive and ability to limit openness, 

but they had done so in the past. (As the 

Commission explained in the Open 

Internet Order, examples such as the 

Madison River case, the Comcast-Bit 

Torrent case, and various mobile 

wireless Internet providers restricting 

customers’ use of competitive payment 

applications, competitive voice 

applications, and remote video 

applications, indicate that broadband 

providers have the technical ability to 

act on incentives to harm the open 

Internet. The D.C. Circuit also found 

that these examples buttressed the 

Commission’s conclusion that 

broadband providers’ incentives and 

ability to restrict Internet traffic could 

interfere with the Internet’s openness.) 

The D.C. Circuit found that the 

Commission ‘‘adequately supported and 

explained’’ that, absent open Internet 

rules, ‘‘broadband providers represent a 

threat to Internet openness and could 

act in ways that would ultimately 

inhibit the speed and extent of future 

broadband deployment.’’ The record 

generated in this proceeding convinces 

us that the Commission’s conclusion in 

the Open Internet Order—that providers 

of broadband have a variety of strong 

incentives to limit Internet openness— 

remains valid today. 

80. Broadband providers’ networks 

serve as platforms for Internet 

ecosystem participants to communicate, 

enabling broadband providers to impose 

barriers to end-user access to the 

Internet on one hand, and to edge 

provider access to broadband 

subscribers on the other. This applies to 

both fixed and mobile broadband 

providers. Although there is some 

disagreement among commenters, the 

record provides substantial evidence 

that broadband providers have 

significant bargaining power in 

negotiations with edge providers and 

intermediaries that depend on access to 

their networks because of their ability to 

control the flow of traffic into and on 

their networks. Another way to describe 

this significant bargaining power is in 

terms of a broadband provider’s position 

as gatekeeper—that is, regardless of the 

competition in the local market for 

broadband Internet access, once a 

consumer chooses a broadband 

provider, that provider has a monopoly 

on access to the subscriber. Many 

parties demonstrated that both mobile 

and fixed broadband providers are in a 

position to function as a gatekeeper with 

respect to edge providers. Once the 

broadband provider is the sole provider 

of access to an end user, this can 

influence that network’s interactions 

with edge providers, end users, and 

others. As the Commission and the 

court have recognized, broadband 

providers 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. 

Broadband providers can exploit this 

role by acting in ways that may harm 

the open Internet, such as preferring 

their own or affiliated content, 

demanding fees from edge providers, or 

placing technical barriers to reaching 

end users. Without multiple, 

substitutable paths to the consumer, and 

the ability to select the most costeffective route, edge providers will be 

subject to the broadband provider’s 

gatekeeper position. The D.C. Circuit 

noted that the Commission 

‘‘convincingly detailed’’ broadband 

providers’ market position, which gives 

them ‘‘the economic power to restrict 

edge-provider traffic and charge for the 

services they furnish edge providers,’’ 

and further stated that the Commission 

reasonably explained that ‘‘this ability 

to act as a ‘gatekeeper’ distinguishes 

broadband providers from other 

participants in the Internet marketplace 

who have no similar ‘control [over] 

access to the Internet for their 

subscribers and for anyone wishing to 

reach those subscribers.’’’ (We find, for 

example, that even though edge 

providers may possess bargaining 

power, they do not have the same ability 

as broadband providers to control the 

flow of traffic or block access to the 

Internet. With respect to mobile, the 

presence of some additional retail 

competition is not enough to alter our 

conclusion here.) The ability of 

broadband providers to exploit this 

gatekeeper role could be mitigated if 

consumers multi-homed (i.e., bought 

broadband service from multiple 

networks). However, multi-homing is 

not widely practiced and imposes 

significant additional costs on 

consumers. The gatekeeper role could 

also be mitigated if a consumer could 

easily switch broadband providers. But, 

as discussed further below, the evidence 

suggests otherwise. 

81. The broadband provider’s position 

as gatekeeper is strengthened by the 

high switching costs consumers face 

when seeking a new service. Among the 

costs that consumers may experience 

are: High upfront device installation 

fees; long-term contracts and early 

termination fees; the activation fee 

when changing service providers; and 

compatibility costs of owned equipment 

not working with the new service. 

Bundled pricing can also play a role, as 

‘‘single-product subscribers are four 

times more likely to churn than tripleplay subscribers.’’ These costs may limit 

consumers’ willingness and ability to 

switch carriers, if such a choice is 

indeed available. Commenters also 

point to an information problem, 

whereby consumers are unsure about 

the causes of problems or limitations 

with their services—for example, 

whether a slow speed on an application 

is caused by the broadband provider or 

the edge provider—and as such 

consumers may not feel that switching 

providers will resolve their Internet 

access issues. Additionally, consumers 

on unlimited data plans may be 

confused by slowed data speeds because 

broadband providers have not 

adequately communicated 

contractually-imposed data management 


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practices and usage thresholds. 

Switching costs are also a critical factor 

that negatively impacts mobile 

broadband consumers, in particular due 

to the informational uncertainties 

mentioned below, among other reasons. 

Ultimately, when consumers face this 

kind of friction in switching to 

meaningful competitive alternatives, it 

decreases broadband provider’ 

responsiveness to consumer demands 

and limits the provider’s incentives to 

improve their networks. Additionally, 

45 percent of households have only a 

single provider option for 25 Mbps/3 

Mbps broadband service, indicating that 

45 percent of households do not have 

any choices to switch to at this critical 

level of service. 

82. Broadband providers may seek to 

gain economic advantages by favoring 

their own or affiliated content over 

other third-party sources. Technological 

advances have given broadband 

providers the ability to block content in 

real time, which allows them to act on 

their financial incentives to do so in 

order to cut costs or prefer certain types 

of content. Data caps or allowances, 

which limit the amount and type of 

content users access online, can have a 

role in providing consumers options 

and differentiating services in the 

marketplace, but they also can 

negatively influence customer behavior 

and the development of new 

applications. Similarly, broadband 

providers have incentives to charge for 

prioritized access to end users or 

degrade the level of service provided to 

non-prioritized content. When 

bandwidth is limited during peak hours, 

its scarcity can cause reliability and 

quality concerns, which increases 

broadband providers’ ability to charge 

for prioritization. Such practices could 

result in so-called ‘‘tolls’’ for edge 

providers seeking to reach a broadband 

provider’s subscribers, leading to 

reduced innovation at the edge, as well 

as increased rates for end users, 

reducing consumer demand, and further 

disrupting the virtuous cycle. 

Commenters expressed considerable 

concern regarding the harmful effects of 

paid prioritization on Internet openness. 

Further, as discussed above, a 

broadband provider’s incentive to favor 

affiliated content or the content of 

unaffiliated firms that pay for it to do so, 

to block or degrade traffic, to charge 

edge providers for access to end users, 

and to disadvantage non-prioritized 

transmission all increase when end 

users are less able to respond by 

switching to rival broadband providers. 

83. In addition to the harms outlined 

above, broadband providers’ behavior 

has the potential to cause a variety of 

other negative externalities that hurt the 

open nature of the Internet. Broadband 

providers have incentives to engage in 

practices that will provide them short 

term gains but will not adequately take 

into account the effects on the virtuous 

cycle. In the Open Internet Order, the 

Commission found that the 

unaccounted-for harms to innovation 

are negative externalities, and are likely 

to be particularly large because of the 

rapid pace of Internet innovation, and 

wide-ranging because of the role of the 

Internet as a general purpose 

technology. Further, the Commission 

noted that a broadband provider may 

hesitate to impose costs on its own 

subscribers, but it will typically not take 

into account the effect that reduced edge 

provider investment and innovation has 

on the attractiveness of the Internet to 

end users that rely on other broadband 

providers—and will therefore ignore a 

significant fraction of the cost of forgone 

innovation. The record supports our 

view that these negative externality 

problems have not disappeared, and in 

some cases, may be more prevalent. In 

order to mitigate these negative results, 

the Commission needs to act to promote 

Internet openness. 

84. A final point on this question of 

economic incentives and ability is 

worth noting. Broadband providers have 

the ability to act as gatekeepers even in 

the absence of ‘‘the sort of market 

concentration that would enable them to 

impose substantial price increases on 

end users.’’ We therefore need not 

consider whether market concentration 

gives broadband providers the ability to 

raise prices. The Commission came to 

this conclusion in the Open Internet 

Order, and we conclude the same here. 

As the Commission noted in the Open 

Internet Order, threats to Internetenabled innovation, growth, and 

competition do not depend on 

broadband providers having market 

power with respect to their end users. 

In Verizon, the court agreed, explaining 

that ‘‘broadband providers’ ability to 

impose restrictions on edge providers 

simply depends on end users not being 

fully responsive to the imposition of 

such restrictions.’’ (We note further that, 

of course, our reclassification of 

broadband Internet access service as a 

‘‘telecommunications service’’ subject to 

Title II below likewise does not rely on 

such a test or any measure of market 

power. Indeed, our reclassification 

decision is based on whether BIAS 

meets the statutory definition of a 

‘‘telecommunications service,’’ and not 

any additional economic 

circumstances.) As we have concluded 

in this section, this remains true today. 

(We note, however, that in areas where 

there are limited competitive 

alternatives, this may exacerbate other 

problems such as the ability to switch 

from one provider to another.) 

b. Technical Ability 

85. As the Commission explained in 

the Open Internet Order, past instances 

of abuse indicate that broadband 

providers have the technical ability to 

act on incentives to harm the open 

Internet. Broadband providers have a 

variety of tools at their disposal that can 

be used to monitor and regulate the flow 

of traffic over their networks—giving 

them the ability to discriminate should 

they choose to do so. Techniques used 

by broadband providers to identify and 

select traffic may include approaches 

based on packet payloads (using deep 

packet inspection), network or transport 

layer headers (e.g., port numbers or 

priority markings), or heuristics (e.g., 

the size, sequencing, and/or timing of 

packets). Using these techniques, 

broadband providers may apply 

network practices to traffic that has a 

particular source or destination, that is 

generated by a particular application or 

by an application that belongs to a 

particular class of applications, that 

uses a particular application- or 

transport-layer protocol, or that is 

classified for special treatment by the 

user, application, or application 

provider. Application-specific network 

practices depend on the broadband 

provider’s ability to identify the traffic 

associated with particular uses of the 

network. Some of these applicationspecific practices may be reasonable 

network management, e.g., tailored 

network security practices. However, 

some of these techniques may also be 

abused. Deep packet inspection, for 

example, may be used in a manner that 

may harm the open Internet, e.g., to 

limit access to certain Internet 

applications, to engage in paid 

prioritization, and even to block certain 

content. Similarly, traffic control 

algorithms can be abused, e.g., to give 

certain packets favorable placement in 

queues or to send packets along less 

congested routes in a manner contrary 

to end user preferences. Use of these 

techniques may ultimately affect the 

quality of service that users receive, 

which could effectively force edge 

providers to enter into paid 

prioritization agreements to prevent 

poor quality of content to end users. 

3. Mobile Broadband Services 

86. We have discussed above the 

incentives and ability of broadband 

providers to act in ways that limit 

Internet openness, regardless of the 


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specific technology platform used by the 

provider. A significant subject of 

discussion in the record, however, 

concerned mobile broadband providers 

specifically, and we therefore believe it 

is appropriate to address here the 

incentive and ability that these 

providers have to limit Internet 

openness. As the Commission noted in 

the Open Internet Order, ‘‘[c]onsumer 

choice, freedom of expression, end-user 

control, competition, and the freedom to 

innovate without permission are as 

important when end users are accessing 

the Internet via mobile broadband as via 

fixed.’’ The Commission noted that 

‘‘there have been instances of mobile 

providers blocking certain third-party 

applications, particularly applications 

that compete with the provider’s own 

offerings . . . .’’ However, the 

Commission also noted the nascency of 

the mobile broadband industry, citing 

the recent development of ‘‘app’’ stores, 

and what it characterized at the time as 

‘‘new business models for mobile 

broadband providers, including usagebased pricing.’’ Furthermore, the 

Commission at that time found that 

‘‘[m]obile broadband speeds, capacity, 

and penetration [were] typically much 

lower than for fixed broadband’’ and 

noted that carriers had only begun to 

offer 4G service. 

87. Citing these factors, as well as 

greater consumer choice, ‘‘meaningful 

recent moves toward openness in and 

on mobile broadband networks,’’ and 

the operational constraints faced by 

mobile broadband providers, the 

Commission applied its open Internet 

rules to mobile broadband, but 

distinguished between fixed and mobile 

broadband in some regards: While it 

applied the same transparency rule to 

both fixed and mobile network 

providers, it adopted a different noblocking standard for mobile broadband 

Internet access service, and excluded 

mobile broadband from the 

unreasonable discrimination rule. In the 

2014 Open Internet NPRM, the 

Commission tentatively concluded that 

it should maintain the same approach 

going forward, but recognized that there 

have been significant changes since 

2010 in the mobile marketplace. The 

Commission sought comment on 

whether those changes should lead it to 

revisit the treatment of mobile 

broadband services. 

88. Today, we find that changes in the 

mobile broadband marketplace warrant 

a revised approach. We find that the 

mobile broadband marketplace has 

evolved, and continues to evolve, but is 

no longer in a nascent stage. As 

discussed below, mobile broadband 

networks are faster, more broadly 

deployed, more widely used, and more 

technologically advanced than they 

were in 2010. We conclude that it 

would benefit the millions of consumers 

who access the Internet on mobile 

devices to apply the same set of Internet 

openness protections to both fixed and 

mobile networks. 

89. Network connection speed and 

data consumption have exploded. For 

2010, Cisco reported an average mobile 

network connection speed of 709 kbps. 

Since that time there has been massive 

expansion of mobile broadband 

networks, providing vastly increased 

download speeds. For 2013, Cisco 

reported an average mobile connection 

speed of 2,058 kbps. This increase in 

speed is partially due to the deployment 

of faster network technologies. 

Currently, mobile broadband networks 

provide coverage and services using a 

variety of 3G and 4G technologies, 

including, most importantly, LTE. As a 

consequence of the growing deployment 

of next generation networks, there has 

been an increase of more than 200,000 

percent in the number of LTE 

subscribers, from approximately 70,000 

in 2010 to over 140 million in 2014. 

Concurrent with these substantial 

changes in mobile broadband 

deployment and download speeds, 

mobile data traffic has exploded, 

increasing from 388 billion MB in 2010 

to 3.23 trillion MB in 2013. AT&T 

reports that its wireless data traffic has 

grown 100,000 percent between 2007 

and 2014 and 20,000 percent over the 

past five years. T-Mobile states that 

‘‘data usage continues to expand 

exponentially, with year-to-year 

increases of roughly 120 percent.’’ 

90. As consumers use smartphones 

and tablets more, they increasingly rely 

on mobile broadband as a pathway to 

the Internet. The Internet Association 

argues that mobile Internet access is 

essential, since many Americans ‘‘are 

wholly reliant on mobile wireless for 

Internet access.’’ In addition, evidence 

shows that consumers in certain 

demographic groups, including low 

income and rural consumers and 

communities of color, are more likely to 

rely on mobile as their only access to 

the Internet. Citing data from the Pew 

Research Center’s Internet & American 

Life Project, OTI states that ‘‘[t]he share 

of Americans relying exclusively on 

their smartphone[s] to access the 

Internet is far higher among Hispanics, 

Blacks, and adults aged 18–29, and 

households earning less than $30,000 a 

year.’’ According to data from the 

National Health Interview Survey, 44 

percent of households were ‘‘wirelessonly’’ during January–June 2014, 

compared to 31.6 percent during 

January–June 2011. These data also 

show that 59.1 percent of adults living 

in poverty reside in wireless-only 

households, relative to 40.8 percent of 

higher income adults. Additionally, 

rural consumers and businesses often 

have access to fewer options for Internet 

service, meaning that these customers 

may have limited alternatives when 

faced with restrictions to Internet 

openness imposed by their mobile 

provider. Furthermore, just as consumer 

reliance on mobile broadband has 

grown, edge providers increasingly rely 

on mobile broadband to reach their 

customers. Microsoft states, for 

example, that, ‘‘with ‘the pressure . . . 

only increasing to either go mobile or go 

home,’ edge providers frequently 

introduce new edge services on mobile 

platforms first, and the success or 

failure of these edge providers’ 

businesses often depends in large part 

on their mobile offerings.’’ 

91. Furthermore, the technology 

underlying today’s mobile broadband 

networks, as compared to those 

deployed in 2010, not only provides 

operators with a greater ability to 

manage their networks consistent with 

the rules we adopt today, but also gives 

those operators a greater ability to 

engage in conduct harmful to the 

virtuous cycle in the absence of open 

Internet rules. As discussed above, 

certain behaviors by broadband 

providers may impose negative 

externalities on the Internet ecosystem, 

resulting in less innovation from edge 

providers. We find that the same is true 

today for mobile wireless broadband 

providers, particularly as mobile 

broadband technology has become more 

widespread and mobile broadband 

services have become more integrated 

into the economy. 

92. In view of the evidence showing 

the evolution of the mobile broadband 

marketplace, we conclude that it would 

best serve the public interest to revise 

our approach for mobile broadband 

services and apply the same openness 

requirements as those applied to 

providers of fixed broadband services. 

The Commission has long recognized 

that the Internet should remain open for 

consumers and innovators alike, 

regardless of the different technologies 

and services through which it may be 

accessed. Although the Commission 

found in 2010 that conditions at that 

time warranted a more limited 

application of open Internet rules to 

mobile broadband services, it 

nevertheless recognized the importance 

of freedom and openness for users of 

mobile broadband networks, finding 

that ‘‘consumer choice, freedom of 

expression, end-user control, 


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competition, and the freedom to 

innovate without permission are as 

important when end users are accessing 

the Internet via mobile broadband as via 

fixed.’’ In contrast to the state of the 

mobile broadband marketplace when 

the Commission adopted the 2010 open 

Internet rules, the evidence in the 

record today shows how mobile 

broadband services have evolved to 

become essential, critical means of 

access to the Internet for millions of 

consumers every day. Because of this 

evolution and the widespread use of 

mobile broadband services, maintaining 

a regime under which fewer protections 

apply in a mobile environment risks 

creating a substantively different 

Internet experience for mobile 

broadband users as compared to fixed 

broadband users. Broadband users 

should be able to expect that they will 

be entitled to the same Internet 

openness protections no matter what 

technology they use to access the 

Internet. We agree with arguments made 

by a large number of commenters that 

applying a consistent set of 

requirements will help ensure that all 

consumers can benefit from full access 

to an open and robust Internet. We note 

that evidence in the record indicates 

that mobile broadband providers 

themselves have recognized the 

importance of open Internet practices 

for mobile broadband consumers. 

93. Despite their support of open 

Internet principles, several of the 

nationwide mobile providers oppose 

broader openness requirements for 

mobile broadband, arguing that 

additional rules are unnecessary in the 

mobile broadband market. T-Mobile, for 

example, argues that ‘‘robust retail 

competition in the mobile broadband 

market already constrains mobile 

provider behavior.’’ Verizon comments 

that ‘‘consumer choice and competition 

also have ensured a differentiated 

marketplace in which providers 

routinely develop innovative offerings 

designed to outcompete competitors’ 

offerings.’’ AT&T contends that 

additional rules are unnecessary as 

mobile broadband providers are already 

investing in the networks, innovating, 

reducing prices, and thriving. CTIA 

contends that ‘‘the robust competitive 

conditions in the mobile broadband 

marketplace are a defining 

differentiator’’ and that ‘‘any new open 

Internet framework should account for 

the competitive mobile dynamic.’’ 

94. Based upon the significant 

changes in mobile broadband since 2010 

discussed above, including the 

increased use of mobile broadband and 

the greater ability of mobile broadband 

providers to engage in conduct harmful 

to the virtuous cycle, we are not 

persuaded that maintaining fewer open 

Internet protections for consumers of 

mobile broadband services would serve 

the public interest. Contrary to provider 

arguments that applying a broader set of 

openness requirements will stifle 

innovation and chill investment, we 

find that the rules we adopt today for all 

providers of services will promote 

innovation, investment, and 

competition. As we discuss above, an 

open Internet enables a virtuous cycle 

where new uses of the network drive 

consumer demand, which drives 

network improvements, which result in 

further innovative uses. We agree with 

commenters that ‘‘mobile is a key 

component’’ of the virtuous cycle. OTI 

comments that ‘‘a variety of economic 

analyses suggest that the Internet’s 

openness is a key driver of its value 

. . . . Other economic studies have 

found that non-neutral conditions in the 

broadband market might maximize 

profits for broadband providers but 

would ultimately minimize consumer 

welfare . . . . There is significant 

evidence that a vibrant and neutral 

online economy is critical for a healthy 

technology industry, which is a 

significant creator of jobs in the U.S.’’ 

We find that these arguments apply to 

mobile broadband providers as well as 

to fixed, and apply even though there 

may be more competition among mobile 

broadband providers. 

95. We note that the Commission’s 

experience with applying open platform 

rules to Upper 700 MHz C Block 

licensees, including Verizon Wireless, 

has shown that openness principles can 

be applied to mobile services without 

inhibiting a mobile provider’s ability to 

compete and be successful in the 

marketplace. We find that it is 

reasonable to conclude that, even with 

broader application of Internet openness 

requirements, mobile broadband 

providers will similarly continue to 

compete and develop innovative 

products and services. We also expect 

that the force of consumer demand that 

led mobile broadband providers to 

invest in their networks over the past 

four years will likely continue to drive 

substantial investments in mobile 

broadband networks under the open 

Internet regime we adopt today. 

96. Although mobile providers 

generally argue that additional rules are 

not necessary to deter practices that 

would limit Internet openness, concerns 

related to the openness practices of 

mobile broadband providers have 

arisen. As we noted in the 2014 Open 

Internet NPRM, in 2012, the 

Commission reached a $1.25 million 

settlement with Verizon for restricting 

tethering apps on Verizon smartphones, 

based on openness requirements 

attached to Verizon’s Upper 700 MHz C 

Block licenses. Also in 2012, consumers 

complained when they encountered 

problems accessing Apple’s FaceTime 

application on AT&T’s network. More 

recently, significant concern has arisen 

when mobile providers’ have attempted 

to justify certain practices as reasonable 

network management practices, such as 

applying speed reductions to customers 

using ‘‘unlimited data plans’’ in ways 

that effectively force them to switch to 

price plans with less generous data 

allowances. As Consumers Union 

observes, many mobile broadband 

provider practices are non-transparent, 

because customers receive ‘‘no warning 

or explanation of when their speeds will 

be slowed down.’’ Other commenters 

such as OTI also cite mobile providers’ 

blocking of the Google Wallet e-payment 

application. Although providers 

claimed that the blocking was justified 

based on security concerns, OTI notes 

that ‘‘this carrier behavior raised 

anticompetitive concerns when AT&T, 

Verizon and T-Mobile later unveiled 

their own mobile payment application, 

a competitor to Google Wallet . . . .’’ 

Microsoft also describes further 

potential for abuse based on its 

experience in other countries without 

open Internet protections, claiming, for 

example, that ‘‘several broadband access 

providers around the world have 

interfered or degraded Skype traffic on 

their networks.’’ A recent survey of 

European Internet users found that 

respondents reported experiencing 

problems with ‘‘blocking of internet 

content.’’ Mobile services notably 

accounted for a significant percentage of 

negative experiences reported in the 

survey. OTI argues that, even with 

competition, mobile providers have an 

interest in seeking rents from edge 

providers and ‘‘in securing a 

competitive advantage for their own 

competing apps, content and services.’’ 

We agree, and find that the rules we 

adopt today for mobile network 

providers will help guard against future 

incidents that have the potential to 

affect Internet openness and undermine 

a mobile broadband consumer’s right to 

access a free and open Internet. 

97. In addition, we agree with those 

commenters that argue that mobile 

broadband providers have the 

incentives and ability to engage in 

practices that would threaten the open 

nature of the Internet, in part due to 

consumer switching costs. Switching 

costs are a significant factor in enabling 

the ability of mobile broadband 

providers to act as gatekeepers. 


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Microsoft states that ‘‘for the large 

number of applications that are 

available only in the mobile context, 

mobile broadband access providers 

today can be an edge provider’s only 

option for reaching a particular end 

user,’’ and argues that, because of high 

switching costs, few mobile broadband 

consumers routinely switch providers. 

Therefore, Microsoft argues, ‘‘even if 

there is more than one mobile 

broadband access provider in a specific 

market, there may not be effective 

competitive alternatives (for edge 

providers or consumers) and these 

mobile broadband access providers 

retain the ability to act in a manner that 

undermines the competitive neutrality 

of the online marketplace.’’ 

98. The level of wireless churn, when 

viewed in conjunction with data on 

consumer satisfaction, is consistent with 

the existence of important switching 

costs for customers. Based on results 

from surveys, OTI and Consumers 

Union argue that switching costs have 

depressed mobile wireless churn rates, 

meaning that customers may remain 

with their service providers even when 

they are dissatisfied. Consumers Union 

cites a February 2015 Consumer Reports 

survey showing that ‘‘27 percent of 

mobile broadband consumer[s] who are 

dissatisfied with their mobile broadband 

service provider are reluctant to switch 

carriers’’ due to several factors. That 

many customers stay with their mobile 

wireless providers, despite expressing 

dissatisfaction with their current 

provider and despite the availability of 

alternate plans from other providers, 

suggests the presence of significant 

barriers to switching. Furthermore, this 

has been a period of market and 

spectrum consolidation, which has 

decreased the choices available to 

consumers in many parts of the country. 

For example, Vonage argues that ‘‘recent 

mergers between AT&T and Leap, and 

T-Mobile and MetroPCS have reduced 

the ability of wireless end users to 

switch to competing providers in the 

event of potential discrimination against 

the edge services they may want to 

access.’’ Choices may be particularly 

limited in rural areas, both because 

fewer service providers tend to operate 

in these regions and because consumers 

may encounter difficulties in porting 

their numbers from national to local 

service providers. 

99. Switching costs may arise due to 

a number of factors that affect mobile 

consumers. For example, consumers 

may face costs due to informational 

uncertainty, particularly in the context 

of concerns over open Internet 

restrictions. The provision of wireless 

service involves the interaction between 

the wireless network operator, the 

various edge providers, the customer’s 

handset or other equipment, and the 

conditions present in the specific 

location the customer wishes to use the 

service. In this environment, it can be 

very difficult for customers to ascertain 

the source of a service disruption, and 

hence whether switching wireless 

providers would solve the problem. 

Additionally, product differentiation 

can make it difficult for consumers to 

compare plans, which may also increase 

switching costs. Finally, customers may 

face a variety of hassle-related and 

financial switching costs. Disconnecting 

an existing service and activating a new 

one may involve early termination fees 

(ETFs), coordinating with multiple 

members of a family plan, billing set-up, 

transferring personal files, and porting 

phone numbers, each of which may 

create delays or difficulties for 

customers. As part of this process, some 

customers may need to replace their 

equipment, which may not be 

compatible with their new mobile 

service provider’s network. OTI and 

Consumers Union argue that moving 

multiple members of a shared or family 

plan may be particularly expensive, 

since ‘‘[n]ot only do groups face the cost 

of multiple ETFs, but frequently the 

contract termination dates become 

nonsynchronous due to the addition of 

new lines and individuals upgrading 

their devices at different points in 

time.’’ Furthermore, OTI and Consumers 

Union argue that these costs affect an 

increasingly large proportion of 

consumers, since the penetration of 

shared plans has increased such that the 

majority of AT&T and Verizon Wireless 

customers now have shared plans. 

100. AT&T, T-Mobile, and Verizon 

argue that the factors that led the 

Commission to adopt a more limited set 

of openness rules for mobile in 2010 

remain valid today. They argue that 

mobile broadband networks should not 

be viewed as mature as mobile 

technologies continue to develop and 

evolve. They also contend that the 

extraordinary growth in use of mobile 

broadband services requires that 

providers have more flexibility to be 

able to handle the increased traffic and 

ensure quality of service for subscribers. 

T-Mobile, for example, asserts that 

‘‘while mobile networks are more robust 

and offer greater speeds and capacity 

than they did when the 2010 rules were 

enacted, they also face greater demands; 

their need for agile and dynamic 

network management tools has actually 

increased.’’ 

101. We recognize that mobile service 

providers must take into account factors 

such as mobility and reliance on 

spectrum. As discussed more fully 

below in the context of each of the rules, 

however, we find that the requirements 

we adopt today are sufficiently tailored 

to provide carriers with the flexibility 

they need to accommodate these 

conditions. Moreover, as described 

further below, we conclude that 

retaining an exception to the noblocking rule, the no-throttling rule, and 

the no-unreasonable interference/

disadvantage standard we adopt today 

for reasonable network management 

will allow sufficient flexibility for 

mobile service providers. 

4. The Commission Must Act To 

Preserve Internet Openness 

102. Given that broadband 

providers—both fixed and mobile—have 

both the incentives and ability to harm 

the open Internet, we again conclude 

that the relatively small incremental 

burdens imposed by our rules are 

outweighed by the benefits of preserving 

the open nature of the Internet, 

including the continued growth of the 

virtuous cycle of innovation, consumer 

demand, and investment. We note, for 

example, that the disclosure 

requirements adopted in this order are 

widely understood, have industry-based 

definitions, and are commonly used in 

commercial Service Level Agreements 

by many broadband providers. Open 

Internet rules benefit investors, 

innovators, and end users by providing 

more certainty to each regarding 

broadband providers’ behavior, and 

helping to ensure the market is 

conducive to optimal use of the Internet. 

Open Internet rules are also critical for 

ensuring that people living and working 

in rural areas can take advantage of the 

substantial benefits that the open 

Internet has to offer. In minority 

communities where many individuals’ 

only Internet connection may be 

through a mobile device, robust open 

Internet rules help make sure these 

communities are not negatively 

impacted by harmful broadband 

provider conduct. Such rules 

additionally provide essential 

safeguards to ensure that the Internet 

flourishes as a platform for education 

and research. 

103. The Commission’s historical 

open Internet policies and rules have 

blunted the incentives, discussed above, 

to engage in behavior harmful to the 

open Internet. Commenters who argue 

that rules are not necessary overlook the 

role that the Commission’s rules and 

policies have played in fostering that 

result. Without rules in place to protect 

the open Internet, the overwhelming 

incentives broadband providers have to 

act in ways that are harmful to 


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investment and innovation threaten 

both broadband networks and edge 

content. Paid prioritization agreements, 

for example, have the potential to 

distort the market by causing prices not 

to reflect efficient cost recovery and by 

altering consumer choices for content 

and edge providers. The record reflects 

the view that paid arrangements for 

priority treatment, such as broadband 

providers discriminating among content 

providers or prioritizing one provider’s 

or its own content over others, likely 

damage the open Internet, harming 

competition and consumer choice. 

Additionally, blocking and throttling 

harm a consumer’s right to access lawful 

content, applications, and services, and 

to use non-harmful devices. 

C. Strong Rules That Protect Consumers 

From Practices That Can Threaten the 

Open Internet 

104. We are keenly aware that in the 

wake of the Verizon decision, there are 

no rules in place to prevent broadband 

providers from engaging in conduct 

harmful to Internet openness, such as 

blocking a consumer from accessing a 

requested Web site or degrading the 

performance of an innovative Internet 

application. (We acknowledge other 

laws address behavior similar to that 

which our rules are designed to prevent; 

however, as discussed below, we do not 

find existing laws sufficient to 

adequately protect consumers’ access to 

the open Internet. For example, some 

parties have suggested that existing 

antitrust laws would address 

discriminatory conduct of an 

anticompetitive nature. We also note 

that certain ‘‘no blocking’’ obligations 

continue to apply to the use of Upper 

700 MHz C Block licenses.) While many 

providers have indicated that, at this 

time, they do not intend to depart from 

the previous rules, an open Internet is 

too important to consumers and 

innovators to leave unprotected. 

Therefore, we today reinstate strong, 

enforceable open Internet rules. As in 

2010, we believe that conduct-based 

rules targeting specific practices are 

necessary. 

105. No-Blocking. First, we adopt a 

bright-line rule prohibiting broadband 

providers from blocking lawful content, 

applications, services, or non-harmful 

devices. This ‘‘no-blocking’’ principle 

has long been a cornerstone of the 

Commission’s policies. While first 

applied in the Internet context as part of 

the Commission’s Internet Policy 

Statement, the no-blocking concept 

dates back to the Commission’s 

protection of end users’ rights to attach 

lawful, non-harmful devices to 

communications networks. 

106. No-Throttling. Second, we adopt 

a separate bright-line rule prohibiting 

broadband providers from impairing or 

degrading lawful Internet traffic on the 

basis of content, application, service, or 

use of non-harmful device. This conduct 

was prohibited under the commentary 

to the no-blocking rule adopted in the 

2010 Open Internet Order. However, to 

emphasize the importance of this 

concept we delineate under a separate 

rule a ban on impairment or 

degradation, to prevent broadband 

providers from engaging in behavior 

other than blocking that negatively 

impacts consumers’ use of content, 

applications, services, and devices. 

107. No Paid Prioritization. Third, we 

respond to the deluge of public 

comment expressing deep concern 

about paid prioritization. Under the rule 

we adopt today, the Commission will 

ban all paid prioritization subject to a 

narrow waiver process. 

108. No-Unreasonable Interference/

Disadvantage Standard. In addition to 

these three bright-line rules, we also set 

forth a no-unreasonable interference/

disadvantage standard, under which the 

Commission can prohibit practices that 

unreasonably interfere with the ability 

of consumers or edge providers to 

select, access, and use broadband 

Internet access service to reach one 

another, thus causing harm to the open 

Internet. This no-unreasonable 

interference/disadvantage standard will 

operate on a case-by-case basis and is 

designed to evaluate other current or 

future broadband Internet access 

provider policies or practices—not 

covered by the bright-line rules— and 

prohibit those that harm the open 

Internet. 

109. Transparency Requirements. We 

also adopt enhancements to the existing 

transparency rule to more effectively 

serve end-user consumers, edge 

providers of broadband products and 

services, and the Internet community. 

These enhanced transparency 

requirements are modest in nature, and 

we decline to adopt requirements 

proposed in the NPRM that raised 

concern for smaller broadband 

providers in particular, such as 

disclosures as to the source of 

congestion. 

1. Clear, Bright Line Rules 

110. The record in this proceeding 

reveals that three practices in particular 

demonstrably harm the open Internet: 

Blocking, throttling, and paid 

prioritization. For the reasons described 

below, we find each of these practices 

is 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. We accordingly 

adopt bright-line rules banning 

blocking, throttling, and paid 

prioritization by providers of both fixed 

and mobile broadband Internet access 

service. 

a. Preventing Blocking of Lawful 

Content, Applications, Services, and 

Non-Harmful Devices 

111. We continue to find, for the same 

reasons the Commission found in the 

2010 Open Internet Order and reiterated 

in the 2014 Open Internet NPRM, 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.’’ Because of broadband 

providers’ incentives to block 

competitors’ content, the need to protect 

a consumer’s right to access lawful 

content, applications, services, and to 

use non-harmful devices is as important 

today as it was when the Commission 

adopted the first no-blocking rule in 

2010. 

112. In the 2014 Open Internet NPRM, 

the Commission tentatively concluded 

that it should re-adopt the text of the 

vacated no-blocking rule. The record 

overwhelmingly supports the notion of 

a no-blocking principle and re-adopting 

the text of the original rule. (A broad 

cross-section of broadband providers, 

edge providers, public interest 

organizations, and individuals support 

this approach.) Further, we note that 

many broadband providers still 

voluntarily continue to abide by the 

2010 no-blocking rule, even though they 

have not been legally required to do so 

by a rule of general applicability since 

the Verizon decision. After 

consideration of the record and 

guidance from the D.C. Circuit, we 

adopt the following no-blocking rule 

applicable to both fixed and mobile 

broadband providers of broadband 

Internet access service: 

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. 

113. Similar to the 2010 no-blocking 

rule, the phrase ‘‘content, applications, 

and services’’ again 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. Further, the 

no-blocking rule adopted today again 


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applies to transmissions of lawful 

content and does not prevent or restrict 

a broadband provider from refusing to 

transmit unlawful material, such as 

child pornography or copyrightinfringing materials. (Similar to the 

2010 no-blocking rule, this obligation 

does not impose any independent legal 

obligation on broadband providers to be 

the arbiter of what is lawful.) Today’s 

no-blocking rule also entitles end users 

to connect, access, and use any lawful 

device of their choice, provided that the 

device does not harm the network. The 

no-blocking rule prohibits network 

practices that block a specific 

application or service, or any particular 

class of applications or services, unless 

it is found to be reasonable network 

management. Finally, as with the 2010 

no-blocking rule, today’s no-blocking 

rule prohibits broadband providers from 

charging edge providers a fee to avoid 

having the edge providers’ content, 

service, or application blocked from 

reaching the broadband provider’s enduser customer. (We note that during oral 

argument in the Verizon case, Verizon 

told the court that ‘‘in paragraph 64 of 

the Order the Agency also sets forth the 

no charging of edge providers rule as a 

corollary to the no blocking rule, and 

that’s a large part of what is causing us 

our harm here.’’ In response, Judge 

Silberman stated, ‘‘if you were allowed 

to charge, which are you assuming 

you’re allowed to charge because of the 

anti-common carrier point of view, if 

somebody refused to pay then just like 

in the dispute between C[B]S and 

Warner, Time Warner . . . you could 

refuse to carry.’’ Verizon’s counsel 

responded: ‘‘[r]ight.’’ Verizon Oral Arg. 

Tr. at 28.) 

114. Rejection of the Minimum Level 

of Access Standard. The 2014 Open 

Internet NPRM proposed that the noblocking rule would prohibit broadband 

providers from depriving edge providers 

of a minimum level of access to the 

broadband provider’s subscribers and 

sought comment on how to define that 

minimum level of service. After 

consideration of the record, we reject 

the minimum level of access standard. 

Broadband providers, edge providers, 

public interest organizations, and other 

parties note the practical and technical 

difficulties associated with setting any 

such minimum level of access. For 

example, some parties note the 

uncertainty created by an indefinite 

standard. Other parties observe that in 

creating any such standard of service for 

no-blocking, the Commission risks 

jeopardizing innovation. We agree with 

these arguments and many others in the 

record expressing concern with the 

proposed minimum level of access 

standard. 

115. The no-blocking rule we adopt 

today prohibits broadband providers 

from blocking access to lawful Internet 

content, applications, services, and nonharmful devices. We believe that this 

approach will allow broadband 

providers to honor their service 

commitments to their subscribers 

without relying upon the concept of a 

specified level of service to those 

subscribers or edge providers under the 

no-blocking rule. We further believe that 

the separate no-throttling rule discussed 

below provides appropriate protections 

against harmful conduct that degrades 

traffic but does not constitute outright 

blocking. 

116. Application of the No-Blocking 

Rule to Mobile. In 2010, the Commission 

limited the no-blocking rule for mobile 

to lawful Web sites and applications 

that competed with a provider’s voice or 

video telephony services, subject to 

reasonable network management. The 

2014 Open Internet NPRM, citing ‘‘the 

operational constraints that affect 

mobile broadband services, the rapidly 

evolving nature of the mobile broadband 

technologies, and the generally greater 

amount of consumer choice for mobile 

broadband services than for fixed,’’ 

proposed to retain the 2010 no-blocking 

rule. The Commission sought comment 

on this proposal. 

117. For the reasons set forth above, 

including consumer expectations, the 

Commission’s experience with open 

Internet regulations in the 700 MHz C 

Block, and the advances in the mobile 

broadband industry since 2010, we 

conclude instead that the same noblocking rule should apply to both fixed 

and mobile broadband Internet access 

services. Accordingly, as with fixed 

service, a consumer’s mobile broadband 

provider cannot block a consumer from 

accessing lawful content, applications, 

services, or non-harmful devices, 

regardless of whether the content, 

applications, services, or devices (In 

evaluating the reasonable network 

management exception to the noblocking rule, the Commission will 

drawing upon its experience with the 

no-blocking rule in the 700 MHz C 

Block.) compete with a provider’s own 

offerings, subject to reasonable network 

management. 

118. All national mobile broadband 

providers, among others, opposed the 

application of the broader no-blocking 

rule to mobile broadband, arguing, for 

example, that mobile broadband 

providers need the ability to block 

unwanted traffic and spam. They also 

argue that the particular challenges of 

managing a mobile broadband network, 

for example the unknown effects of 

apps, require additional flexibility to 

block traffic. As discussed below, we 

recognize that additional flexibility may 

be required in mobile network 

management practices, but find that the 

reasonable network management 

exception we adopt today allows 

sufficient flexibility: The blocking of 

harmful or unwanted traffic remains a 

legitimate network management 

purpose, and is permissible when 

pursued through reasonable network 

management practices. 

b. Preventing Throttling of Lawful 

Content, Applications, Services, and 

Non-Harmful Devices 

119. In the 2014 Open Internet NPRM, 

the Commission proposed that 

degradation of lawful content or 

services below a specified level of 

service would violate a no-blocking 

rule. While certain broadband Internet 

access provider conduct may result in 

degradation of an end user’s Internet 

experience that is tantamount to 

blocking, we believe that this conduct 

requires delineation in an explicit rule 

rather than through commentary as part 

of the no-blocking rule. Thus, we adopt 

a separate no-throttling rule applicable 

to both fixed and mobile providers of 

broadband Internet access service: 

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. 

120. With the no-throttling rule, we 

ban conduct that is not outright 

blocking, but inhibits the delivery of 

particular content, applications, or 

services, or particular classes of content, 

applications, or services. Likewise, we 

prohibit conduct that impairs or 

degrades lawful traffic to a non-harmful 

device or class of devices. We interpret 

this prohibition to include, for example, 

any conduct by a broadband Internet 

access service provider that impairs, 

degrades, slows down, or renders 

effectively unusable particular content, 

services, applications, or devices, that is 

not reasonable network management. 

For purposes of this rule, the meaning 

of ‘‘content, applications, and services’’ 

has the same as the meaning given to 

this phrase in the no-blocking rule. Like 

the no-blocking rule, broadband 

providers may not impose a fee on edge 

providers to avoid having the edge 

providers’ content, service, or 

application throttled. Further, transfers 

of unlawful content or unlawful 

transfers of content are not protected by 

the no-throttling rule. We will consider 


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potential violations of the no-throttling 

rule under the enforcement provisions 

outlined below. 

121. We find that a prohibition on 

throttling is as necessary as a rule 

prohibiting blocking. Without an 

equally strong no-throttling rule, parties 

note that the no-blocking rule will not 

be as effective because broadband 

providers might otherwise engage in 

conduct that harms the open Internet 

but falls short of outright blocking. For 

example, the record notes the existence 

of numerous practices that broadband 

providers can engage in to degrade an 

end user’s experience. 

122. Because our no-throttling rule 

addresses instances in which a 

broadband provider targets particular 

content, applications, services, or nonharmful devices, it does not address a 

practice of slowing down an end user’s 

connection to the Internet based on a 

choice made by the end user. For 

instance, a broadband provider 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. If the Commission were 

concerned about the particulars of a 

data plan, it could review it under the 

no-unreasonable interference/

disadvantage standard. In contrast, if a 

broadband provider degraded the 

delivery of a particular application (e.g., 

a disfavored VoIP service) or class of 

application (e.g., all VoIP applications), 

it would violate the bright-line nothrottling rule. We note that userselected data plans with reduced speeds 

must comply with our transparency 

rule, such that the limitations of the 

plan are clearly and accurately 

communicated to the subscriber. 

123. The no-throttling rule also 

addresses conduct that impairs or 

degrades content, applications, or 

services that might compete with a 

broadband provider’s affiliated content. 

For example, if a broadband provider 

and an unaffiliated entity both offered 

over-the-top applications, the nothrottling rule would prohibit 

broadband providers from constraining 

bandwidth for the competing over-thetop offering to prevent it from reaching 

the broadband provider’s end user in 

the same manner as the affiliated 

application. 

124. As in the 2010 Open Internet 

Order, we continue to recognize that in 

order to optimize the end-user 

experience, broadband providers must 

be permitted to engage in reasonable 

network management practices. We 

emphasize, however, that to be eligible 

for consideration under the reasonable 

network management exception, a 

network management practice that 

would otherwise violate the nothrottling rule must be used reasonably 

and primarily for network management 

purposes, and not for business 

purposes. (While not within the 

definition of ‘‘throttling’’ for purposes of 

our no-throttling rule, the slowing of 

subscribers’ content on an application 

agnostic basis, including as an element 

of subscribers’ purchased service plans, 

will be evaluated under the 

transparency rule and the nounreasonable interference/disadvantage 

standard.) 

c. No Paid Prioritization 

125. In the 2014 Open Internet NPRM, 

the Commission sought comment on 

suggestions to impose a flat ban on paid 

prioritization services, including 

whether all paid prioritization practices, 

or some of them, could be treated as per 

se violations of the commerciallyreasonable standard or any other 

standard based on any source of legal 

authority. For reasons explained below, 

we conclude that paid prioritization 

network practices harm consumers, 

competition, and innovation, as well as 

create disincentives to promote 

broadband deployment and, as such, 

adopt a bright-line rule against such 

practices. Accordingly, today we ban 

arrangements in which the broadband 

service provider accepts consideration 

(monetary or otherwise) from a third 

party to manage the network in a 

manner that benefits particular content, 

applications, services, or devices. We 

also ban arrangements where a provider 

manages its network in a manner that 

favors the content, applications, services 

or devices of an affiliated entity. (We 

consider arrangements of this kind to be 

paid prioritization, even when there is 

no exchange of payment or other 

consideration between the broadband 

Internet access service provider and the 

affiliated entity.) Any broadband 

provider that engages in such practices 

will be subject to enforcement action, 

including forfeitures and other 

penalties. (Other forms of traffic 

prioritization, including practices that 

serve a public safety purpose, may be 

acceptable under our rules as reasonable 

network management.) We adopt the 

following rule banning paid 

prioritization 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. 

126. The paid prioritization ban we 

adopt today is based on the record that 

has developed in this proceeding. The 

record is rife with commenter concerns 

regarding preferential treatment 

arrangements, with many advocating a 

flat ban on paid prioritization. 

Commenters assert that permitting paid 

prioritization will result in the 

bifurcating of the Internet into a ‘‘fast’’ 

lane for those willing and able to pay 

and a ‘‘slow’’ lane for everyone else. As 

several commenters observe, allowing 

for the purchase of priority treatment 

can lead to degraded performance—in 

the form of higher latency, increased 

risk of packet loss, or, in aggregate, 

lower bandwidth—for traffic that is not 

covered by such an arrangement. 

Commenters further argue that paid 

prioritization will introduce artificial 

barriers to entry, distort the market, 

harm competition, harm consumers, 

discourage innovation, undermine 

public safety and universal service, and 

harm free expression. Vimeo, for 

instance, argues that paid prioritization 

‘‘would disadvantage user-generated 

video and independent filmmakers’’ 

that lack the resources of major film 

studios to pay priority rates for 

dissemination of content. Engine 

Advocacy meanwhile asserts that 

‘‘[s]ome unfunded early startups may 

not be able to afford [to pay for priority 

treatment] (particularly if the product 

would be data-intensive) and will not 

start a company,’’ resulting in 

‘‘reduce[d] entrepreneurship.’’ 

Commenters assert that if paid 

prioritization became widespread, it 

would make reliance on consumers’ 

ordinary, non-prioritized access to the 

Internet an increasingly unattractive and 

competitively nonviable option. The 

Commission’s conclusion is supported 

by a well-established body of economic 

literature, (The access provided by the 

core network is an intermediate input 

into the myriad of final products 

produced by edge providers. While it is 

granted that for a firm selling final 

goods, price discrimination can be both 

profitable and enhance welfare, it has 

been argued that the reverse is also true 

when intermediate goods are 

considered.) including Commission staff 

working papers. 

127. It is well-established that 

broadband providers have both the 

incentive and ability to engage in paid 

prioritization. In its Verizon opinion, 

the DC Circuit noted that providers 

‘‘have powerful incentives to accept fees 

from edge providers, either in return for 


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excluding their competitors or for 

granting them prioritized access to end 

users.’’ Indeed, at oral argument 

Verizon’s counsel announced that ‘‘but 

for [the 2010 Open Internet Order] rules 

we would be exploring [such] 

commercial arrangements.’’ While we 

appreciate that several broadband 

providers have claimed that they do not 

engage in paid prioritization or that they 

have no plans to do so, (For example, 

we note that in Verizon’s letter to 

Chairman Leahy, the company states 

‘‘[a]s we have said before, and affirm 

again here, Verizon has no plans to 

engage in paid prioritization of Internet 

traffic.’’ Verizon Letter to Leahy at 1. 

However, in contrast to this statement, 

at oral argument in the Verizon case, 

counsel for Verizon explained that the 

company would pursue such 

arrangements if not for the 2010 Open 

Internet rules which prevented them.) 

such statements do not have the force of 

a legal rule that prevents them from 

doing so in the future. The future 

openness of the Internet should not turn 

on the decision of a particular company. 

We are concerned that if paid 

prioritization practices were to become 

widespread, the damage to Internet 

openness could be difficult to reverse. 

We agree that ‘‘[u]nraveling a web of 

discriminatory deals after significant 

investments have been made, business 

plans have been built, and technologies 

have been deployed would be a 

complicated undertaking both 

logistically and politically.’’ Further, 

documenting the harms could prove 

challenging, as it is impossible to 

identify small businesses and new 

applications that are stifled before they 

become commercially viable. 

Prioritizing some traffic over others 

based on payment or other 

consideration from an edge provider 

could fundamentally alter the Internet 

as a whole by creating artificial 

motivations and constraints on its use, 

damaging the web of relationships and 

interactions that define the value of the 

Internet for both end users and edge 

providers, and posing a risk of harm to 

consumers, competition, and 

innovation. Thus, because of the very 

real concerns about the chilling effects 

that preferential treatment arrangements 

could have on the virtuous cycle of 

innovation, consumer demand, and 

investment, we adopt a bright-line rule 

banning paid prioritization 

arrangements. (Some commenters argue 

that consumer disclosures about such 

practices are sufficient. However, the 

average consumer does not have the 

time or specialized knowledge to sort 

through the implications, and 

regardless, in many areas of the country, 

consumers simply do not have multiple, 

equivalent choices.) 

128. In arguing against such a ban, 

ADTRAN asserts that it would ‘‘cement 

the advantages enjoyed by the largest 

edge providers that presently obtain the 

functional equivalent of priority access 

by constructing their own extensive 

networks that interconnect directly with 

the ISPs.’’ We reject this argument. CDT 

correctly observes that ‘‘[e]stablished 

entities with substantial resources will 

always have a variety of advantages’’ 

over less established ones, 

notwithstanding any rules we adopt. We 

do not seek to disrupt the legitimate 

benefits that may accrue to edge 

providers that have invested in 

enhancing the delivery of their services 

to end users. On the contrary, such 

investments may contribute to the 

virtuous cycle by stimulating further 

competition and innovation among edge 

providers, to the ultimate benefit of 

consumers. We also clarify that the ban 

on paid prioritization does not restrict 

the ability of a broadband provider and 

CDN to interconnect. 

129. We find that a flat ban on paid 

prioritization has advantages over 

alternative approaches identified in the 

record. Prohibiting this practice outright 

will help to foster broadband network 

investment by setting clear boundaries 

of acceptable and unacceptable 

behavior. It will also protect consumers 

against a harmful practice that may be 

difficult to understand, even if 

disclosed. In addition, this approach 

relieves small edge providers, 

innovators, and consumers of the 

burden of detecting and challenging 

instances of harmful paid prioritization. 

Given the potential harms to the 

virtuous cycle, we believe it is more 

appropriate to impose an ex ante ban on 

such practices, while entertaining 

waiver requests under exceptional 

circumstances. 

130. Under our longstanding waiver 

rule, the Commission may waive any 

rule ‘‘in whole or in part, for good cause 

shown.’’ General waiver of the 

Commission’s rules is appropriate only 

if special circumstances warrant a 

deviation from the general rule, and 

such a deviation will serve the public 

interest. In some cases, however, the 

Commission adopts specific rules 

concerning the factors that will be used 

to examine a waiver or exemption 

request. We believe that such guidance 

is appropriate here to make clear the 

very limited circumstances in which the 

Commission would be willing to allow 

paid prioritization. Accordingly, we 

adopt a rule concerning waiver of the 

paid prioritization ban that establishes a 

balancing test, as follows: 

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. 

131. In support of any waiver request, 

the applicant therefore must make two 

related showings. First, the applicant 

must demonstrate that the practice will 

have some significant public interest 

benefit, such as providing evidence that 

the practice furthers competition, 

innovation, consumer demand, or 

investment. Second, the applicant must 

demonstrate that the practice does not 

harm the nature of the open Internet, 

including, but not limited to, providing 

evidence that the practice: 

• Does not materially degrade or 

threaten to materially degrade the 

broadband Internet access service of the 

general public; 

• does not hinder consumer choice; 

• does not impair competition, 

innovation, consumer demand, or 

investment; and 

• does not impede any forms of 

expressions, types of service, or points 

of view. 

132. An applicant seeking waiver 

relief under this rule faces a high bar. 

We anticipate granting such relief only 

in exceptional cases. (For instance, 

several commenters argue that paid 

prioritization arrangements could 

improve the provision of telemedicine 

services.) 

2. No Unreasonable Interference or 

Unreasonable Disadvantage Standard for 

Internet Conduct 

133. In the 2014 Open Internet NPRM, 

the Commission tentatively concluded 

that it should adopt a rule requiring 

broadband providers to use 

‘‘commercially reasonable’’ practices in 

the provision of broadband Internet 

access service, and sought comment on 

this approach. (The Commission also 

tentatively concluded that it should 

operate separately from the proposed 

no-blocking rule, i.e., conduct 

acceptable under the no-blocking rule 

would still be subject to independent 

examination under the ‘‘commercially 

reasonable’’ standard, and sought 

comment on this approach.) The 

Commission also sought comment on 

whether there were alternative legal 

standards that the Commission should 

consider, or whether it should adopt a 

rule that prohibits unreasonable 

discrimination and, if so, what legal 

authority and theories it should rely 

upon to do so. In addition, the 

Commission sought comment on how it 


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can ensure that the rule it adopts 

sufficiently protects against harms to the 

open Internet, including broadband 

providers’ incentives to disadvantage 

edge providers or classes of edge 

providers in ways that would harm 

Internet openness. 

134. The Commission sought 

comment on what factors it should 

adopt to ensure commercially 

reasonable practices that will protect 

and promote Internet openness, and 

tentatively concluded that a review of 

the totality of the circumstances should 

be preserved to ensure that rules can be 

applied evenly and fairly in response to 

changing circumstances. The 

Commission also recognized that there 

have been significant changes in the 

mobile marketplace since 2010, and 

sought comment on whether and, if so, 

how these changes should affect the 

Commission’s treatment of mobile 

services under the rules. (Specifically, 

the Commission sought comment on 

whether, under the commercially 

reasonable rule, mobile networks should 

be subject to the same totality-of-the 

circumstances test as fixed broadband, 

and whether the Commission should 

apply the commercially reasonable legal 

standard to mobile broadband.) 

135. Preventing Unreasonable 

Interference or Unreasonable 

Disadvantage that Harms Consumers 

and Edge Providers. The three brightline rules that we adopt today prohibit 

specific conduct that harms the open 

Internet. The open nature of the Internet 

has allowed new products and services 

to flourish and has broken down 

geographic barriers to communication, 

allowing information to flow freely. We 

believe the rules we adopt today will 

alleviate many of the concerns 

identified in the record regarding 

broadband provider practices that could 

upset these positive outcomes. 

However, while these three bright-line 

rules comprise a critical cornerstone in 

protecting and promoting the open 

Internet, we believe that there may exist 

other current or future practices that 

cause the type of harms our rules are 

intended to address. For that reason, we 

adopt a rule setting forth a nounreasonable interference/disadvantage 

standard, under which the Commission 

can 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. 

136. 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. Based on our 

findings that broadband providers have 

the incentive and ability to discriminate 

in their handling of network traffic in 

ways that can harm the virtuous cycle 

of innovation, increased end-user 

demand for broadband access, and 

increased investment in broadband 

network infrastructure and technologies, 

we conclude that a no-unreasonable 

interference/disadvantage standard to 

protect the open nature of the Internet 

is necessary. We adopt this standard to 

prohibit practices in the broadband 

Internet access provider’s network that 

harm Internet openness, similar to the 

approach proposed by the Higher 

Education coalition and the Center for 

Democracy and Technology. 

Specifically, we require that: 

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. Reasonable 

network management shall not be considered 

a violation of this rule. (As in the no 

throttling rule, we include classes of content, 

applications, services, or devices.) 

137. This ‘‘no-unreasonable 

interference/disadvantage’’ standard 

will be applied to carefully balance the 

benefits of innovation against harm to 

end users and edge providers. It also 

protects free expression, thus fulfilling 

the congressional policy that the 

Internet ‘‘offer[s] a forum for true 

diversity of political discourse, unique 

opportunities for cultural development, 

and myriad avenues for intellectual 

activity.’’ As the Commission found in 

2010, and the Verizon court upheld, 

‘‘[r]estricting edge providers’ ability to 

reach end users, and limiting end users’ 

ability to choose which edge providers 

to patronize, would reduce the rate of 

innovation at the edge and, in turn, the 

likely rate of improvements to network 

infrastructure. Similarly, restricting the 

ability of broadband providers to put the 

network to innovative uses may reduce 

the rate of improvements to network 

infrastructure.’’ Under the standard that 

we adopt today, the Commission can 

protect against harm to end users’ or 

edge providers’ ability to use broadband 

Internet access service to reach one 

another. Compared to the no 

unreasonable discrimination standard 

adopted by the Commission in 2010, the 

standard we adopt today is specifically 

designed to protect against harms to the 

open nature of the Internet. We note that 

the standard we adopt today represents 

our interpretation of sections 201 and 

202 in the broadband Internet access 

context and, independently, our 

interpretation—upheld by the Verizon 

court—that rules to protect Internet 

openness promote broadband 

deployment via the virtuous cycle under 

section 706 of the 1996 Act. 

a. Factors To Guide Application of the 

Rule 

138. We adopt our tentative 

conclusion to follow a case-by-case 

approach, considering the totality of the 

circumstances, when analyzing whether 

conduct satisfies the no-unreasonable 

interference/disadvantage standard to 

protect the open Internet. Below we 

discuss a non-exhaustive list of factors 

we will use to assess such practices. In 

adopting this standard, we enable 

flexibility in business arrangements and 

ensure that innovation in broadband 

and edge provider business models is 

not unduly curtailed. We are mindful 

that vague or unclear regulatory 

requirements could stymie rather than 

encourage innovation, and find that this 

approach combined with the factors set 

out below will provide sufficient 

certainty and guidance to consumers, 

broadband providers, and edge 

providers—particularly smaller entities 

that might lack experience dealing with 

broadband providers—while also 

allowing parties flexibility in 

developing new services. (We also note 

that this Order permits parties to seek 

advisory opinions regarding application 

of the Commission’s open Internet rules. 

We view these processes as 

complementary methods by which 

parties can seek guidance as to how the 

open Internet rules apply to particular 

conduct.) We note that in addition to 

the following list, there may be other 

considerations relevant to determining 

whether a particular practice violates 

the no-unreasonable interference/

disadvantage standard. This approach of 

adopting a rule of general conduct, 

followed by guidance as to how to apply 

it on a case-by-case basis, is not novel. 

The Commission took a similar 

approach in 2010 when it adopted the 

‘‘no unreasonable discrimination’’ rule, 

which was followed by a discussion of 

four factors (end-user control, useagnostic discrimination, standard 

practices, and transparency). Indeed, for 

this new rule, we are providing at least 

as much guidance, if not more, as we 

did in 2010 for the application of the no 

unreasonable discrimination rule. 

139. End-User Control. A practice that 

allows end-user control and is 


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consistent with promoting consumer 

choice is less likely to unreasonably 

interfere with or cause an unreasonable 

disadvantage affecting the end user’s 

ability to use the Internet as he or she 

sees fit. The Commission has long 

recognized that enabling consumer 

choice is the best path toward ensuring 

competitive markets, economic growth, 

and technical innovation. It is therefore 

critical that consumers’ decisions, rather 

than those of service providers, remain 

the driving force behind the 

development of the Internet. To this 

end, practices that favor end-user 

control and empower meaningful 

consumer choice are more likely to 

satisfy the no-unreasonable 

interference/disadvantage standard than 

those that do not. However, as was true 

in 2010, we are cognizant that user 

control and network control are not 

mutually exclusive, and that many 

practices will fall somewhere on a 

spectrum from more end-user-controlled 

to more broadband provider-controlled. 

Further, there may be practices 

controlled entirely by broadband 

providers that nonetheless satisfy the 

no-unreasonable interference/

disadvantage standard. In all events, 

however, we emphasize that such 

practices should be fully transparent to 

the end user and effectively reflect end 

users’ choices. 

140. Competitive Effects. As the 

Commission has found previously, 

broadband providers have incentives to 

interfere with and disadvantage the 

operation of third-party Internet-based 

services that compete with the 

providers’ own services. Practices that 

have anti-competitive effects in the 

market for applications, services, 

content, or devices would likely 

unreasonably interfere with or 

unreasonably disadvantage edge 

providers’ ability to reach consumers in 

ways that would have a dampening 

effect on innovation, interrupting the 

virtuous cycle. As such, these 

anticompetitive practices are likely to 

harm consumers’ and edge providers’ 

ability to use broadband Internet access 

service to reach one another. 

Conversely, enhanced competition leads 

to greater options for consumers in 

services, applications, content, and 

devices, and as such, practices that 

would enhance competition would 

weigh in favor of promoting consumers’ 

and edge providers’ ability to use 

broadband Internet access service to 

reach one another. In examining the 

effect on competition of a given 

practice, we will also review the extent 

of an entity’s vertical integration as well 

as its relationships with affiliated 

entities. 

141. Consumer Protection. The nounreasonable interference/disadvantage 

standard is intended to serve as a strong 

consumer protection standard. It 

prohibits broadband providers from 

employing any deceptive or unfair 

practice that will unreasonably interfere 

with or disadvantage end-user 

consumers’ ability to select, access, or 

use broadband services, applications, or 

content, so long as the services are 

lawful, subject to the exception for 

reasonable network management. For 

example, unfair or deceptive billing 

practices, as well as practices that fail to 

protect the confidentiality of end users’ 

proprietary information, will be 

unlawful if they unreasonably interfere 

with or disadvantage end-user 

consumers’ ability to select, access, or 

use broadband services, applications, or 

content, so long as the services are 

lawful, subject to the exception for 

reasonable network management. While 

each individual case will be evaluated 

on its own merits, this rule is intended 

to include protection against fraudulent 

practices such as ‘‘cramming’’ and 

‘‘slamming’’ that have long been viewed 

as unfair and disadvantageous to 

consumers. 

142. Effect on Innovation, Investment, 

or Broadband Deployment. As the 

Verizon court recognized, Internet 

openness drives a ‘‘virtuous cycle’’ in 

which 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. As 

such, practices that stifle innovation, 

investment, or broadband deployment 

would likely unreasonably interfere 

with or unreasonably disadvantage end 

users’ or edge providers’ use of the 

Internet under the legal standard we set 

forth today. 

143. Free Expression. As Congress has 

recognized, the Internet ‘‘offer[s] a 

forum for a true diversity of political 

discourse, unique opportunities for 

cultural development, and myriad 

avenues for intellectual activity.’’ 

Practices that threaten the use of the 

Internet as a platform for free expression 

would likely unreasonably interfere 

with or unreasonably disadvantage 

consumers’ and edge providers’ ability 

to use BIAS to communicate with each 

other, thereby causing harm to that 

ability. Further, such practices would 

dampen consumer demand for 

broadband services, disrupting the 

virtuous cycle, and harming end user 

and edge provider use of the Internet 

under the legal standard we set forth 

today. (We also note that the nounreasonable interference/disadvantage 

standard does not unconstitutionally 

burden any of the First Amendment 

rights held by broadband providers 

because broadband providers are 

conduits, not speakers, with respect to 

broadband Internet access services.) 

144. Application Agnostic. 

Application-agnostic (sometimes 

referred to as use-agnostic) practices 

likely do not cause an unreasonable 

interference or an unreasonable 

disadvantage to end users’ or edge 

providers’ ability to use BIAS to 

communicate with each other. (A 

network practice is application-agnostic 

if it does not differentiate in treatment 

of traffic, or if it differentiates in 

treatment of traffic without reference to 

the content, application, or device. A 

practice is application-specific if it is 

not application-agnostic. Applicationspecific network practices include, for 

example, those applied to traffic that 

has a particular source or destination, 

that is generated by a particular 

application or by an application that 

belongs to a particular class of 

applications, that uses a particular 

application- or transport-layer protocol, 

or that has particular characteristics 

(e.g., the size, sequencing, and/or timing 

of packets). We note, however, that 

there do exist circumstances where 

application-agnostic practices raise 

competitive concerns, and as such may 

violate our standard to protect the open 

Internet.) Application-agnostic practices 

do not interfere with end users’ choices 

about which content, applications, 

services, or devices to use, nor do they 

distort competition and unreasonably 

disadvantage certain edge providers. As 

such, they likely would not cause harm 

by unreasonably interfering with or 

disadvantaging end users or edge 

providers’ ability to communicate using 

BIAS. 

145. Standard Practices. In evaluating 

whether a practice violates our nounreasonable interference/disadvantage 

standard to protect Internet openness, 

we will consider whether a practice 

conforms to best practices and technical 

standards adopted by open, broadly 

representative, and independent 

Internet engineering, governance 

initiatives, or standards-setting 

organization. Consideration of input 

from technical advisory groups accounts 

for the important role these 

organizations have to play in developing 

communications policy. We make clear, 

however, that we are not delegating 

authority to interpret or implement our 

rules to outside bodies. 


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b. Application to Mobile 

146. As discussed earlier, because of 

changes that have occurred in the 

mobile marketplace since 2010, 

including the widespread deployment 

of 4G LTE networks and the significant 

increase in use of mobile broadband 

Internet access services, we find that it 

is appropriate to revise our approach for 

mobile broadband and apply the same 

openness protections to both fixed and 

mobile broadband Internet access 

services, including prohibiting mobile 

broadband providers from engaging in 

practices that harm Internet openness. 

We find that applying the nounreasonable interference/disadvantage 

standard to mobile broadband services 

will help ensure that consumers using 

mobile broadband services are protected 

against provider practices that would 

unreasonably restrict their ability to 

access a free and open Internet. 

147. AT&T, T-Mobile, and Verizon 

oppose application of a ‘‘commercially 

reasonable practices’’ rule to mobile 

broadband networks. They argue that 

competition in the mobile broadband 

market already ensures that service 

providers have no incentive to 

discriminate. CTIA argues that applying 

a commercial reasonableness standard 

would deter innovation and limit the 

ability of providers to differentiate 

themselves in the marketplace because 

providers would have to factor in the 

risk of complaints and investigations. 

Nokia argues that the Commission 

should ensure that its rules allow a 

range of service options. Free State 

recommends that if the Commission 

adopts a legally enforceable standard, it 

should establish a presumption that 

mobile network management practices 

benefit consumer welfare and that 

presumption could only be overcome 

‘‘by actual evidence of anticompetitive 

conduct.’’ 

148. We find that even if the mobile 

market were sufficiently competitive, 

competition alone is not sufficient to 

deter mobile providers from taking 

actions that would limit Internet 

openness. As noted above, there have 

been incidents where mobile providers 

have acted in a manner inconsistent 

with open Internet principles and we 

find that there is a risk that providers 

will continue to have the incentive to 

take actions that would favor their own 

content or services. We also agree with 

commenters that mobile providers’ need 

for flexibility to manage their network 

can be accommodated through the 

reasonable network management 

exception. 

149. In addition, we find that 

applying the no-unreasonable 

interference/disadvantage standard to 

mobile broadband will not affect 

providers’ ability to differentiate 

themselves in the marketplace. We have 

crafted the standard we adopt today to 

prohibit these practices that harm 

Internet openness while still permitting 

innovation and experimentation. 

Nothing in the standard restricts carriers 

from developing new services or 

implementing new business models. 

c. Rejection of the ‘‘Commercially 

Reasonable’’ Standard 

150. Based on the record before us, we 

are persuaded that adopting a legal 

standard prohibiting commercially 

unreasonable practices is not the most 

effective or appropriate approach for 

protecting and promoting an open 

Internet. Internet openness involves 

many relationships that are not 

business-to-business and serves many 

purposes that are noncommercial. (In 

the data roaming context, two 

commercial entities deal directly with 

one another to negotiate a fee-for-service 

agreement, and there is a direct business 

relationship with contractual privity 

and a purely commercial purpose on 

both sides of the transaction. Open 

Internet protections, by contrast, apply 

to a context where there may be no 

direct negotiation and no direct 

agreement between key parties. 

Moreover, while broadband providers 

are commercial entities with 

commercial purposes, many of the 

parties seeking to route traffic to 

broadband subscribers are not.) 

Commenters also expressed concerns 

that the commercially reasonable 

standard would involve a multifactor 

framework that was not focused on the 

goals of this open Internet proceeding. 

In addition, some commenters 

expressed concern that the legal 

standard would require permission 

before innovation, thus creating higher 

barriers to entry and attendant 

transaction costs. Smaller edge 

providers expressed concern that they 

do not have the resources to fight 

against commercially unreasonable 

practices, which could result in an 

unfair playing field before the 

Commission. Still others argued that the 

standard would permit paid 

prioritization, which could 

disadvantage smaller entities and 

individuals. Given these concerns, we 

decline to adopt our proposed rule to 

prohibit practices that are not 

commercially reasonable. Instead, as 

discussed above, we adopt a governing 

standard that looks to whether 

consumers or edge providers face 

unreasonable interference or 

unreasonable disadvantages, and makes 

clear that the standard is not limited to 

whether a practice is agreeable to 

commercial parties. 

d. Sponsored Data and Usage 

Allowances 

151. While our bright-line rule to treat 

paid prioritization arrangements as 

unlawful addresses technical 

prioritization, the record reflects mixed 

views about other practices, including 

usage allowances and sponsored data 

plans. Sponsored data plans (sometimes 

called zero-rating) enable broadband 

providers to exclude edge provider 

content from end users’ usage 

allowances. On the one hand, evidence 

in the record suggests that these 

business models may in some instances 

provide benefits to consumers, with 

particular reference to their use in the 

provision of mobile services. Service 

providers contend that these business 

models increase choice and lower costs 

for consumers. Commenters also assert 

that sophisticated approaches to pricing 

also benefit edge providers by helping 

them distinguish themselves in the 

marketplace and tailor their services to 

consumer demands. Commenters assert 

that such sponsored data arrangements 

also support continued investment in 

broadband infrastructure and promote 

the virtuous cycle, and that there exist 

spillover benefits from sponsored data 

practices that should be considered. On 

the other hand, some commenters 

strongly oppose sponsored data plans, 

arguing that ‘‘the power to exempt 

selective services from data caps 

seriously distorts competition, favors 

companies with the deepest pockets, 

and prevents consumers from exercising 

control over what they are able to access 

on the Internet,’’ again with specific 

reference to mobile services. In 

addition, some commenters argue that 

sponsored data plans are a harmful form 

of discrimination. The record also 

reflects concerns that such arrangements 

may hamper innovation and monetize 

artificial scarcity. 

152. We are mindful of the concerns 

raised in the record that sponsored data 

plans have the potential to distort 

competition by allowing service 

providers to pick and choose among 

content and application providers to 

feature on different service plans. At the 

same time, new service offerings, 

depending on how they are structured, 

could benefit consumers and 

competition. Accordingly, we will look 

at and assess such practices under the 

no-unreasonable interference/

disadvantage standard, based on the 


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facts of each individual case, and take 

action as necessary. 

153. The record also reflects differing 

views over some broadband providers’ 

practices with respect to usage 

allowances (also called ‘‘data caps’’). 

Usage allowances place limits on the 

volume of data downloaded by the end 

user during a fixed period. Once a cap 

has been reached, the speed at which 

the end user can access the Internet may 

be reduced to a slower speed, or the end 

user may be charged for excess data. 

Usage allowances may benefit 

consumers by offering them more 

choices over a greater range of service 

options, and, for mobile broadband 

networks, such plans are the industry 

norm today, in part reflecting the 

different capacity issues on mobile 

networks. Conversely, some 

commenters have expressed concern 

that such practices can potentially be 

used by broadband providers to 

disadvantage competing over-the-top 

providers. Given the unresolved debate 

concerning the benefits and drawbacks 

of data allowances and usage-based 

pricing plans, (Regarding usage-based 

pricing plans, there is similar 

disagreement over whether these 

practices are beneficial or harmful for 

promoting an open Internet.) we decline 

to make blanket findings about these 

practices and will address concerns 

under the no-unreasonable interference/ 

disadvantage on a case-by-case basis. 

3. Transparency Requirements To 

Protect and Promote Internet Openness 

154. In this section, we adopt 

enhancements to the existing 

transparency rule, which covers both 

content and format of disclosures by 

providers of broadband Internet access 

service. As the Commission has 

previously noted, disclosure 

requirements are among the least 

intrusive and most effective regulatory 

measures at its disposal. We find that 

the enhanced transparency 

requirements adopted in the present 

Order serve the same purposes as those 

required under the 2010 Open Internet 

Order: Providing critical information to 

serve end-user consumers, edge 

providers of broadband products and 

services, and the Internet community. 

The transparency rule, including the 

enhancements adopted today, also will 

aid the Commission in enforcing the 

other open Internet rules and in 

ensuring that no service provider can 

evade them through exploitation of 

narrowly-drawn exceptions for 

reasonable network management or 

through evasion of the scope of our 

rules. 

155. In the 2014 Open Internet NPRM, 

we tentatively concluded that we 

should enhance the existing 

transparency rule for end users, edge 

providers, the Internet community, and 

the Commission to have the information 

they need to understand the services 

they receive and to monitor practices 

that could undermine the open Internet. 

The NPRM sought comment on a variety 

of possible enhancements, including 

whether to require tailored disclosures 

for specific constituencies (end users, 

edge providers, the Internet 

community); ways to make the content 

and format of disclosures more 

accessible and understandable to end 

users; specific changes to disclosures for 

network practices that would benefit 

edge providers; whether there are more 

effective or more comprehensive ways 

to measure network performance; 

whether to require providers to disclose 

meaningful information regarding 

source, location, speed, packet loss, and 

duration of congestion; and whether and 

how any enhancements should apply to 

mobile broadband providers in a 

manner different from their application 

to fixed broadband providers. 

156. Based on the record compiled in 

response to those proposals, below we 

set forth targeted, incremental 

enhancements to the existing 

transparency rule. We first recap the 

existing transparency rule, which forms 

the baseline off of which we build 

today. Having established that baseline, 

we describe specific enhancements— 

including refinements and expansions 

in the required disclosures of 

commercial terms, performance 

characteristics, and network practices; 

adoption of a requirement that 

broadband providers notify end users 

directly if their individual use of a 

network will trigger a network practice, 

based on their demand prior to a period 

of congestion, that is likely to have a 

significant impact on the use of the 

service. We then address a request to 

exempt small providers from 

enhancements to the transparency rule, 

discuss the relationship of the 

enhancements to the existing 

transparency rule, and note the role that 

we anticipate further guidance from 

Commission staff will continue to play 

in applying the transparency rule in 

practice. Lastly, we adopt a voluntary 

safe harbor (but not a requirement) for 

a standalone disclosure format that 

broadband providers may use in 

meeting the existing requirement to 

disclose information that meets the 

needs of end users. 

a. The Existing Transparency Rule 

157. The D.C. Circuit in Verizon 

upheld the transparency rule, which 

remains in full force, applicable to both 

fixed and mobile providers. In 

enhancing this rule, we build off of the 

solid foundation established by the 

Open Internet Order. In that Order, the 

Commission concluded that effective 

disclosure of broadband providers’ 

network management practices, 

performance, and commercial terms of 

service promotes competition, 

innovation, investment, end-user 

choice, and broadband adoption. As a 

result, the Commission adopted a 

transparency rule requiring both fixed 

and mobile providers to ‘‘publicly 

disclose accurate information regarding 

the network management practices, 

performance, and commercial terms’’ of 

their broadband Internet access service. 

The rule specifies that such disclosures 

be ‘‘sufficient for consumers to make 

informed choices regarding the use of 

such services and for content, 

application, service, and device 

providers to develop, market, and 

maintain Internet offerings.’’ 

158. The 2010 Open Internet Order 

went on to provide guidance on both the 

information to be disclosed and the 

method of disclosure. Within each 

category of required disclosure (network 

management practices, performance 

characteristics, and commercial terms), 

the Open Internet Order described the 

type of information to be disclosed. For 

example, under performance 

characteristics, the Commission 

specified, among other things, 

disclosure of ‘‘expected and actual 

access speed and latency’’ as well as the 

‘‘impact of specialized services.’’ All 

disclosures were required to be made 

‘‘timely and prominently[,] in plain 

language accessible to current and 

prospective end users and edge 

providers, the Commission, and third 

parties who wish to monitor network 

management practices for potential 

violations of open Internet principles.’’ 

159. In 2011 and 2014, Commission 

staff provided guidance on interpreting 

the transparency rule. For example, in 

addition to other points, the 2011 

guidance issued by the Enforcement 

Bureau and Office of General Counsel 

(2011 Advisory Guidance) described the 

means by which fixed and mobile 

broadband providers should meet the 

requirement to disclose actual 

performance of the broadband Internet 

access services they offer and to disclose 

network management practices, 

performance, characteristics, and 

commercial terms ‘‘at the point of sale.’’ 

The 2011 Advisory Guidance also 


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clarified the statement in the Open 

Internet Order that effective disclosures 

‘‘will likely include some or all of the’’ 

information listed in paragraphs 56 and 

98, but also that the list was ‘‘not 

necessarily exhaustive, nor is it a safe 

harbor,’’ and that ‘‘there may be 

additional information, not included [in 

paragraphs 56 and 98], that should be 

disclosed for a particular broadband 

service to comply with the rule in light 

of relevant circumstances.’’ 

Acknowledging the concern of some 

providers that ‘‘they could be liable for 

failing to disclose additional types of 

information that they may not be aware 

are subject to disclosure,’’ the 2011 

Advisory Guidance stated that 

disclosure of the information described 

in those paragraphs ‘‘will suffice for 

compliance with the transparency rule 

at this time.’’ 

160. In an advisory issued in July 

2014 (2014 Advisory Guidance), the 

Enforcement Bureau explained that the 

transparency rule ‘‘prevents a 

broadband Internet access provider from 

making assertions about its service that 

contain errors, are inconsistent with the 

provider’s disclosure statement, or are 

misleading or deceptive.’’ Accurate 

disclosures ‘‘ensure that consumers—as 

well as the Commission and the public 

as a whole—are informed about a 

broadband Internet access provider’s 

network management practices, 

performance, and commercial terms.’’ 

As the 2014 Advisory Guidance 

recognized, the transparency rule ‘‘can 

achieve its purpose of sufficiently 

informing consumers only if 

advertisements and other public 

statements that broadband Internet 

access providers make about their 

services are accurate and consistent 

with any official disclosures that 

providers post on their Web sites or 

make available in stores or over the 

phone.’’ Thus, ‘‘a provider making an 

inaccurate assertion about its service 

performance in an advertisement, where 

the description is most likely to be seen 

by consumers, could not defend itself 

against a transparency rule violation by 

pointing to an ‘accurate’ official 

disclosure in some other public place.’’ 

Allowing such defenses would 

undermine the core purpose of the 

transparency rule. 

161. Today, we build off of this 

baseline: The transparency rule 

requirements established in 2010, and 

interpreted by the 2011 and 2014 

Advisory Guidance. We also take this 

opportunity to make two clarifications 

to the existing rule. First, all of the 

pieces of information described in 

paragraphs 56 and 98 of the Open 

Internet Order have been required as 

part of the current transparency rule, 

and we will continue to require the 

information as part of our enhanced 

rule. The only exception is the 

requirement to disclose ‘‘typical 

frequency of congestion,’’ which we no 

longer require since it is superseded by 

more precise disclosures already 

required by the rule, such as actual 

performance. Second, the requirement 

that all disclosures made by a 

broadband provider be accurate 

includes the need to maintain the 

accuracy of these disclosures. Thus, 

whenever there is a material change in 

a provider’s disclosure of commercial 

terms, network practices, or 

performance characteristics, the 

provider has a duty to update the 

disclosure in a manner that is ‘‘timely 

and prominently disclosed in plain 

language accessible to current and 

prospective end users and edge 

providers, the Commission, and third 

parties who wish to monitor network 

management practices for potential 

violations of open Internet principles.’’ 

(We decline, however, to adopt a 

specific timeframe concerning the 

updating of disclosures following a 

material change (e.g., 24 hours).) For 

these purposes, a ‘‘material’’ change is 

any change that a reasonable consumer 

or edge provider would consider 

important to their decisions on their 

choice of provider, service, or 

application. 

b. Enhancing the Transparency Rule 

162. We adopt the tentative 

conclusion in the 2014 Open Internet 

NPRM to enhance the existing 

transparency rule in certain respects. 

We conclude that enhancing the 

existing transparency rule as described 

below will 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 

will similarly provide edge providers 

with the information necessary to 

develop new content, applications, 

services, and devices that promote the 

virtuous cycle of investment and 

innovation. 

(i) Enhancements to Content of Required 

Disclosures 

163. As noted above, the existing 

transparency rule requires specific 

disclosures with respect to network 

practices, performance characteristics, 

and commercial terms. As we noted in 

the 2014 Open Internet NPRM, the 

Commission has continued to receive 

numerous complaints from consumers 

suggesting that broadband providers are 

not providing information that end 

users and edge providers need to 

receive. We noted that consumers 

continue to express concern that the 

speed of their service falls short of 

advertised speeds, that billed amounts 

are greater than advertised rates, and 

that consumers are unable to determine 

the source of slow or congested service. 

In addition, we noted that end users are 

often surprised that broadband 

providers slow or terminate service 

based on ‘‘excessive use’’ or based on 

other practices, and that consumers 

report confusion regarding data 

thresholds or caps. Further, the need for 

enhanced transparency is bolstered by 

the needs of certain user groups who 

rely on broadband as their primary 

avenue for communications, such as 

people with disabilities. These 

enhancements will also serve edge 

providers. The record supports our 

conclusions that more specific and 

detailed disclosures are necessary to 

ensure that edge providers can 

‘‘develop, market, and maintain Internet 

offerings.’’ Such disclosures will also 

help the wider Internet community 

monitor provider practices to ensure 

compliance with our Open Internet 

rules and providers’ own policies. 

164. Commercial Terms. The existing 

transparency rule defines the required 

disclosure of ‘‘commercial terms’’ to 

include pricing, privacy policies, and 

redress options. While we do not take 

additional action concerning the 

requirement to disclose privacy policies 

and redress options, the record 

demonstrates need for specific required 

disclosures about price and related 

terms. In particular, we specify the 

disclosures of commercial terms for 

prices, other fees, and data caps and 

allowances as follows: 

• Price—The full monthly service 

charge. Any promotional rates should be 

clearly noted as such, specify the 

duration of the promotional period, and 

note the full monthly service charge the 

consumer will incur after the expiration 

of the promotional period. 

• Other Fees—All additional one time 

and/or recurring fees and/or surcharges 

the consumer may incur either to 

initiate, maintain, or discontinue 

service, including the name, definition, 

and cost of each additional fee. (The 

Commission agrees that the magnitude 

of these fees bears on consumer 

decision-making when choosing or 

switching providers. As a result, the 

provision of explicit information 

regarding these fees by providers both 

promotes competition and assists in 

consumer decision making.) These may 

include modem rental fees, installation 

fees, service charges, and early 

termination fees, among others. 


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• Data Caps and Allowances—Any 

data caps or allowances that are a part 

of the plan the consumer is purchasing, 

as well as the consequences of 

exceeding the cap or allowance (e.g., 

additional charges, loss of service for 

the remainder of the billing cycle). 

To be clear, these disclosures may 

have been required in certain 

circumstances under the existing 

transparency rule in order to provide 

information ‘‘sufficient for consumers to 

make informed choices.’’ Here, we now 

require that this information always be 

disclosed. In addition, per the current 

rule, disclosures of commercial terms 

shall also include the provider’s privacy 

policies (‘‘[f]or example, whether 

network management practices entail 

inspection of network traffic, and 

whether traffic information is stored, 

provided to third parties, or used by the 

carrier for non-network management 

purposes’’) and redress options 

(‘‘practices for resolving end-user and 

edge provider complaints and 

questions’’). 

165. Performance Characteristics. The 

existing transparency rule requires 

broadband providers to disclose 

accurate information regarding network 

performance for each broadband service 

they offer. This category includes a 

service description (‘‘[a] general 

description of the service, including the 

service technology, expected and actual 

access speed and latency, and the 

suitability of the service for real-time 

applications’’) and the impact of 

specialized services (‘‘[i]f applicable, 

what specialized services, if any, are 

offered to end users, and whether and 

how any specialized services may affect 

the last-mile capacity available for, and 

the performance, or broadband Internet 

access service’’). 

166. With respect to network 

performance, we adopt the following 

enhancements: 

• The existing transparency rule 

requires disclosure of actual network 

performance. In adopting that 

requirement, the Commission 

mentioned speed and latency as two key 

measures. Today we include packet loss 

as a necessary part of the network 

performance disclosure. 

• We expect that disclosures to 

consumers of actual network 

performance data should be reasonably 

related to the performance the consumer 

would likely experience in the 

geographic area in which the consumer 

is purchasing service. 

• We also expect that network 

performance will be measured in terms 

of average performance over a 

reasonable period of time and during 

times of peak usage. (We recognize that 

parties have expressed concern about 

providing disclosures about network 

performance on a real-time basis. The 

enhancements to the transparency rule 

we adopt today do not include such a 

requirement. Given that the 

performance of mobile broadband 

networks is subject to a greater array of 

factors than fixed networks, we note 

that disclosure of a range of speeds may 

be more appropriate for mobile 

broadband consumers.) 

• We clarify that, for mobile 

broadband providers, the obligation in 

the existing transparency rule to 

disclose network performance 

information for ‘‘each broadband 

service’’ refers to separate disclosures 

for services with each technology (e.g., 

3G and 4G). Furthermore, with the 

exception of small providers, mobile 

broadband providers today can be 

expected to have access to reliable 

actual data on performance of their 

networks representative of the 

geographic area in which the consumer 

is purchasing service—through their 

own or third-party testing—that would 

be the source of the disclosure. (Per the 

2011 Advisory Guidance, those mobile 

broadband providers that ‘‘lack 

reasonable access’’ to reliable 

information on their network 

performance metrics may disclose a 

‘‘Typical Speed Range (TSR)’’ to meet 

the requirement to disclose actual 

performance. In any event, we expect 

that mobile broadband providers’ 

disclosure of actual performance data 

will be based on accepted industry 

practices and principles of statistical 

validity.) Commission staff also 

continue to refine the mobile MBA 

program, which could at the appropriate 

time be declared a safe harbor for 

mobile broadband providers. 

(Participation in the Measuring 

Broadband America (MBA) program 

continues to be a safe harbor for fixed 

broadband providers in meeting the 

requirement to disclose actual network 

performance. The 2011 Advisory 

Guidance further stated that fixed 

providers that choose not to participate 

in MBA may measure and disclose 

performance of their broadband 

offerings using the MBA’s methodology, 

internal testing, consumer speed data, or 

other data, including reliable, relevant 

data from third-party sources. Various 

software-based broadband performance 

tests are available as potential tools for 

end users and companies to estimate 

actual broadband performanceAs noted 

above, we anticipate that the 

measurement methodology used for the 

MBA project will continue to be refined, 

which in turn will enhance the 

effectiveness of network performance 

disclosures generally.) 

We decline to otherwise codify 

specific methodologies for measuring 

the ‘‘actual performance’’ required by 

the existing transparency rule. We find 

that, as in 2010, there is benefit in 

permitting measurement methodologies 

to evolve and improve over time, with 

further guidance from Bureaus and 

Offices—like in 2011—as to acceptable 

methodologies. (We expect that 

acceptable methodologies will be 

grounded in commonly accepted 

principles of scientific research, good 

engineering practices, and 

transparency.) We delegate authority to 

our Chief Technologist to lead this 

effort. 

167. In addition, the existing rule 

concerning performance characteristics 

requires disclosure of the ‘‘impact’’ of 

specialized services, including ‘‘what 

specialized services, if any, are offered 

to end users, and ‘‘whether and how any 

specialized services may affect the lastmile capacity available for, and the 

performance of, broadband Internet 

access service.’’ As discussed below, 

today we more properly refer to these 

services as ‘‘non-BIAS data services.’’ 

Given that the Commission will closely 

scrutinize offerings of non-BIAS data 

services and their impact on 

competition, we clarify that in addition 

to the requirements of the existing rule 

concerning what was formerly referred 

to as ‘‘specialized services,’’ disclosure 

of the impact of non-BIAS data services 

includes a description of whether the 

service relies on particular network 

practices and whether similar 

functionality is available to applications 

and services offered over broadband 

Internet access service. 

168. The 2014 Open Internet NPRM 

tentatively concluded that we should 

require that broadband providers 

disclose meaningful information 

regarding the source, location, timing, 

speed, packet loss, and duration of 

network congestion. As discussed 

above, we continue to require disclosure 

of actual network speed and latency (as 

in 2010), and also require disclosure of 

packet loss. We decline at this time to 

require disclosure of the source, 

location, timing, or duration of network 

congestion, noting that congestion may 

originate beyond the broadband 

provider’s network and the limitations 

of a broadband provider’s knowledge of 

some of these performance 

characteristics. (Short-term congestion 

occurs whenever instantaneous demand 

exceeds capacity. Since demand often 

consists of the aggregation of a large 

number of users’ traffic, it is 

technologically difficult to determine 


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the sources of each component of the 

aggregate traffic) We also asked whether 

the Commission should expand its 

transparency efforts to include 

measurement of other aspects of service. 

We decline at this time to require 

disclosure of packet corruption or jitter, 

noting that commenters expressed 

concerns regarding the difficulty of 

defining metrics for such performance 

characteristics. (Furthermore, corrupted 

packets may be included in the packet 

loss performance characteristic.) 

169. Network Practices. The existing 

transparency rule requires disclosure of 

network practices, including specific 

disclosures related to congestion 

management, application-specific 

behavior, device attachment rules, and 

security. (Additionally, ‘‘mobile 

broadband providers should follow the 

guidance the Commission provided to 

licensees of the upper 700 MHz C Block 

spectrum regarding compliance with 

their disclosure obligations, particularly 

regarding disclosure to third-party 

application developers and device 

manufacturers of criteria and approval 

procedures (to the extent applicable). 

For example, these disclosures include, 

to the extent applicable, establishing a 

transparent and efficient approval 

process for third parties, as set forth in 

section 27.16(d).’’ 2010 Open Internet 

Order (76 FR 59129–01, 59210, Sept. 23, 

2011), 25 FCC Rcd at 17959, para. 98 As 

discussed above, this information 

remains part of the transparency rule, 

with the exception of the requirement to 

disclose the ‘‘typical frequency of 

congestion.’’) Today, in recognition of 

significant consumer concerns 

presented in the record, we further 

clarify that disclosure of network 

practices shall include practices that are 

applied to traffic associated with a 

particular user or user group, including 

any application-agnostic degradation of 

service to a particular end user. (For 

example, a broadband Internet access 

service provider may define user groups 

based on the service plan to which users 

are subscribed, the volume of data that 

users send or receive over a specified 

time period of time or under specific 

network conditions, or the location of 

users.) We also clarify that disclosures 

of user-based or application-based 

practices should include the purpose of 

the practice, which users or data plans 

may be affected, the triggers that 

activate the use of the practice, the types 

of traffic that are subject to the practice, 

and the practice’s likely effects on end 

users’ experiences. While some of these 

disclosures may have been required in 

certain circumstances under the existing 

transparency rule, here we clarify that 

this information should always be 

disclosed. These disclosures with 

respect to network practices are 

necessary: for the public and the 

Commission to know about the 

existence of network practices that may 

be evaluated under the rules, for users 

to understand when and how practices 

may affect them, and for edge providers 

to develop Internet offerings. 

170. The 2014 Open Internet NPRM 

asked whether we should require 

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 decline at this time to 

require such disclosures, noting that 

collection of application-specific usage 

by a broadband provider may require 

use of deep packet inspection practices 

that may pose privacy concerns for 

consumers. 

(ii) Enhancements to the Means of 

Disclosure 

171. The existing transparency rule 

requires, at a minimum, the prominent 

display of disclosures on a publicly 

available Web site and disclosure of 

relevant information at the point of sale. 

(Broadband providers must actually 

disclose information required for 

consumers to make an ‘‘informed 

choice’’ regarding the purchase or use of 

broadband services at the point of sale. 

It is not sufficient for broadband 

providers simply to provide a link to 

their disclosures.) We enhance the rule 

to require a mechanism for directly 

notifying end users if their individual 

use of a network will trigger a network 

practice, based on their demand prior to 

a period of congestion, that is likely to 

have a significant impact on the end 

user’s use of the service. The purpose of 

such notification is to provide the 

affected end users with sufficient 

information and time to consider 

adjusting their usage to avoid 

application of the practice. 

(iii) Small Businesses 

172. The record reflects the concerns 

of some commenters that enhanced 

transparency requirements will be 

particularly burdensome for smaller 

providers. ACA, for example, suggests 

that smaller providers be exempted from 

the provision of such disclosures. ACA 

states that its member companies are 

complying with the current 

transparency requirements, which 

‘‘strike the right balance between edge 

provider and consumer needs for 

pertinent information and the need to 

provide ISPs with some flexibility in 

how they disclose pertinent 

information.’’ We believe that the 

transparency enhancements adopted 

today are modest in nature. For 

example, we have declined to require 

certain disclosures proposed in the 2014 

Open Internet NPRM such as the source 

of congestion, packet corruption, and 

jitter in recognition of commenter 

concerns with the benefits and difficulty 

of making these particular disclosures. 

We also do not require ‘‘real-time’’ 

disclosures. These proposed disclosures 

appear to form the bulk of ACA’s 

concerns. Nevertheless, we take 

seriously the concerns that ACA raises 

and those of smaller broadband 

providers generally. 

173. Out of an abundance of caution, 

we grant a temporary exemption for 

these providers, with the potential for 

that exemption to become permanent. It 

is unclear, however, how best to 

delineate the boundaries of this 

exception. Clearly, it should include 

those providers likely to be most 

disproportionately affected by new 

disclosure requirements. ACA 

‘‘acknowledge[s] that Congress and the 

Commission have defined ‘small’ in 

various ways.’’ One metric to which 

ACA points is the approach that the 

Commission used in its 2013 Rural Call 

Completion Order, which excepted 

providers with 100,000 or fewer 

subscriber lines, aggregated across all 

affiliates, from certain recordkeeping, 

retention, and reporting rules. We adopt 

this definition for purposes of the 

temporary exemption that we adopt 

today. Accordingly, we hereby adopt a 

temporary exemption from the 

enhancements to the transparency rule 

for those providers of broadband 

Internet access service (whether fixed or 

mobile) with 100,000 or fewer 

broadband subscribers as per their most 

recent Form 477, aggregated over all the 

providers’ affiliates. 

174. Yet we believe that both the 

appropriateness of the exemption and 

the threshold require further 

deliberation. Accordingly, the 

exemption we adopt is only temporary. 

We delegate to the Consumer & 

Governmental Affairs Bureau (CGB) the 

authority to determine whether to 

maintain the exemption and, if so, the 

appropriate threshold for it. We direct 

CGB to seek comment on the question 

and to adopt an Order announcing 

whether it is maintaining an exemption 

and at what level by no later than 

December 15, 2015. Until such time, 

notwithstanding any approval received 

by the Office of Management & Budget 

for the enhancements adopted today, 

such enhancements will not apply to 

providers of broadband Internet access 

service with 100,000 or fewer 

subscribers. 


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175. To be clear, all providers of 

broadband Internet access service, 

including small providers, remain 

subject to the existing transparency rule 

adopted in 2010. The temporary 

exemption adopted today, and any 

permanent exemption adopted by CGB, 

applies only to the enhanced 

disclosures described above. As ACA 

states in its request for an exemption for 

small providers, ‘‘[i]rrespective of which 

definition of small that is chosen by the 

Commission, exempt ISPs would still be 

required to comply with the 

transparency requirements contained in 

section 8.3 of the Commission’s rules 

today.’’ 

(iv) Safe Harbor for Form of Disclosure 

to Consumers 

176. The existing transparency rule 

requires disclosures sufficient both to 

enable ‘‘consumers to make informed 

choices regarding use of [broadband] 

services’’ and ‘‘content, application, 

service, and device providers to 

develop, market, and maintain Internet 

offerings.’’ As in 2010, a central purpose 

of the transparency rule remains to 

provide information useful to both 

constituencies. As we noted in the 2014 

Open Internet NPRM, we are concerned 

that disclosures are not consistently 

provided in a manner that adequately 

satisfies the divergent informational 

needs of all affected parties. For 

example, disclosures at times are illdefined; do not consistently measure 

service offerings, making comparisons 

difficult; or are not easily found on 

provider Web sites. In the 2014 Open 

Internet NPRM, we therefore proposed 

requiring separate disclosure statements 

to meet both the basic informational 

needs of consumers and the more 

technical needs of edge providers. 

177. The record reflects concerns, 

however, as to a requirement to offer 

tailored disclosures. For example, ACA 

states that disclosures tailored to edge 

providers ‘‘would require small ISPs, 

who manage their own networks and 

may only have a handful of network 

operators, engineers, and head end staff 

to make onerous expenditures of both 

personnel hours and financial 

resources.’’ Bright House ‘‘question[s] 

the feasibility of creating disclosures 

tailored to the varied and potentially 

unique needs of the hundreds of such 

providers, particularly with no 

reciprocal obligation.’’ Similarly, Tech 

Freedom and the International Center 

for Law and Economics assert that 

‘‘requiring ISPs to tailor their 

disclosures to the various parties the 

ISPs deal with (i.e., consumers, edge 

providers, the Internet community, and 

the FCC) greatly increases the burden of 

complying with these disclosures, 

especially as such disclosures must be 

periodically updated to reflect changes 

to ISPs’ network management 

practices.’’ In light of these concerns, we 

decline to require separate disclosures 

at this time. 

178. In declining to mandate separate 

disclosures, however, we do not intend 

to diminish the existing requirement for 

disclosure of information sufficient for 

both end users and edge providers. The 

Commission has not established that a 

single disclosure would always satisfy 

the rule; rather, it merely stated 

broadband providers ‘‘may be able’’ to 

satisfy the transparency rule through a 

single disclosure. We are especially 

concerned that in some cases a single 

disclosure statement may be too 

detailed and technical to meet the needs 

of consumers, rather than a separate 

consumer-focused disclosure. As noted 

in the 2014 Open Internet NPRM, both 

academic research and the 

Commission’s experience with 

consumer issues have demonstrated that 

the manner in which providers display 

information to consumers can have as 

much impact on consumer decisions as 

the information itself. A stand-alone 

format has proven effective in 

conveying useful information in other 

contexts. We also note that the OIAC 

and OTI have proposed the use of a 

label to disclose the most important 

information to users of broadband 

service. In addition, the United 

Kingdom’s largest Internet service 

providers agreed to produce a 

comparable table of traffic management 

information called a Key Facts 

Indicator. 

179. Therefore, we are establishing a 

voluntary safe harbor for the format and 

nature of the required disclosure to 

consumers. To take advantage of the 

safe harbor, a broadband provider must 

provide a consumer-focused, standalone 

disclosure. We decline, however, to 

mandate the exact format for such 

disclosures at this time. (We note that 

although we have sought comment on 

what format would be most effective, 

the record is lacking on specific details 

as to how such a disclosure should be 

formatted.) Rather, we seek the advice of 

our Consumer Advisory Committee, 

which is composed of both industry and 

consumer interests, including those 

representing people with disabilities. 

(The Committee’s purpose is to make 

recommendations to the Commission 

regarding consumer issues within 

Commission’s jurisdiction and to 

facilitate the participation of consumers 

(including people with disabilities and 

underserved populations, such as 

Native Americans and persons living in 

rural areas) in proceedings before the 

Commission.) We find that the 

Committee’s experience with consumer 

disclosure issues (For example, the 

Committee has studied the value of 

standardized disclosures and their 

contents.) makes it an ideal body to 

recommend a disclosure format that 

should be clear and easy to read— 

similar to a nutrition label—to allow 

consumers to easily compare the 

services of different providers. We 

believe the CAC is uniquely able to 

recommend a disclosure format that 

both anticipates and addresses provider 

compliance burdens while ensuring the 

utility of the disclosures for consumers. 

180. We direct the CAC to formulate 

and submit to the Commission a 

proposed disclosure format, based on 

input from a broad range of 

stakeholders, within six months of the 

time that its new membership is 

reconstituted, but, in any event, no later 

than October 31, 2015. The disclosure 

format must be accessible to persons 

with disabilities. We expect that the 

CAC will consider whether to propose 

the same or different formats for fixed 

and mobile broadband providers. In 

addition, we expect that the CAC will 

consider whether and how a standard 

format for mobile broadband providers 

will allow providers to continue to 

differentiate their services 

competitively, as well as how mobile 

broadband providers can effectively 

disclose commercial terms to consumers 

regarding myriad plans in a manner that 

is not administratively burdensome. The 

Commission delegates authority to the 

Wireline Competition Bureau, Wireless 

Telecommunications Bureau, and 

Consumer & Governmental Affairs 

Bureau to issue a Public Notice 

announcing whether the proposed 

format or formats meet its expectations 

for the safe harbor for making consumerfacing disclosures. If the format or 

formats do not meet such expectations, 

the Bureaus may ask the CAC to 

consider changes and submit a revised 

proposal for the Bureaus’ review within 

90 days of the Bureaus’ request. 

181. Broadband providers that 

voluntarily adopt this format will be 

presumed to be in compliance with the 

requirement to make transparency 

disclosures in a format that meets the 

needs of consumers. Providers that 

choose instead to maintain their own 

format—for example, a unitary 

disclosure intended both for consumers 

and edge providers—will bear the 

burden, if challenged, of explaining how 

a single disclosure statement meets the 

needs of both consumers and edge 

providers. To be clear, use of the 

consumer disclosure format is a safe 


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harbor with respect to the format of the 

required disclosure to consumers. A 

broadband provider meeting the safe 

harbor could still be found to be in 

violation of the rule, for example, if the 

content of that disclosure (e.g., prices) is 

misleading or inaccurate, or the 

provider makes misleading or 

inaccurate statements in another 

context, such as advertisements or other 

statements to consumers. Moreover, 

broadband providers using the safe 

harbor should continue to provide the 

more detailed disclosure statement for 

the benefit of edge providers. 

c. Enforcement and Relationship to the 

Existing Transparency Rule 

182. Despite these enhancements to 

the existing transparency rule, we 

clarify that we are being specific in 

order to provide additional guidance. 

The transparency rule has always 

required broadband providers to 

disclose information ‘‘sufficient for 

consumers to make informed choices’’ 

(Even where a particular category of 

information discussed above was not 

specified in the 2010 Open Internet 

Order that does not mean that 

disclosure of that information has not 

consistently been required under the 

transparency rule. If such information is 

necessary for a consumer to make an 

‘‘informed choice’’ regarding the 

purchase or use of broadband service, 

disclosure of that information is a 

fundamental requirement of the 

transparency rule.) and that test could, 

in particular circumstances, include the 

enhancements that we expressly adopt 

today. We also reiterate that under both 

the existing transparency rule and the 

enhancements adopted in this Order, all 

disclosures that broadband providers 

make about their network practices, 

performance, and commercial terms of 

broadband services must be accurate 

and not misleading. 

183. In the 2014 Open Internet NPRM 

we also requested comment on how the 

Commission could best enforce the 

transparency rule. In particular, we 

noted that a key objective of the 

transparency rule is to enable the 

Commission to collect information 

necessary to access, report, and enforce 

the open Internet rules. For example, we 

sought comment on whether to require 

broadband providers to certify that they 

are in compliance with the required 

disclosures and/or submit reports 

containing descriptions of current 

disclosure practices, particularly if the 

existing flexible approach is amended to 

require more specific disclosures. Some 

commenters caution against measures 

that are unnecessary, susceptible to 

abuse, or burdensome. Others express 

support for stronger or more efficient 

enforcement mechanisms. At this time 

we decline to require certification by 

broadband providers. Should evidence 

be provided, however, that certification 

is necessary, we will revisit this issue at 

a later date. 

184. We also remind providers that if 

their disclosure statements fail to meet 

the requirements established in 2010 

and enhanced today, they may be 

subject to investigation and forfeiture. 

The Enforcement Bureau will closely 

scrutinize failure by providers to meet 

their obligations in fulfilling the 

transparency rule. 

d. Role of Further Advisory Guidance 

185. The 2011 and 2014 Advisory 

Guidance documents illustrate the role 

of further guidance from Commission 

staff in interpreting and applying the 

general requirements of the 

transparency rule. We anticipate that as 

technology, the marketplace, and the 

needs of consumers, edge providers, and 

other stakeholders evolve, further such 

guidance may be appropriate 

concerning the transparency rule, 

including with respect to the 

enhancements adopted today. The most 

immediate example concerns ongoing 

improvements and evolutions in the 

methodologies for measuring broadband 

providers’ actual performance, as 

discussed in further detail above. We 

also point out that broadband providers 

are able to seek advisory opinions from 

the Enforcement Bureau concerning any 

of the open Internet regulations, 

including the transparency rule. 

D. Scope of the Rules 

186. The open Internet rules we adopt 

today apply to fixed and mobile 

broadband Internet access service. We 

make clear, however, that while the 

definition of broadband Internet access 

service encompasses arrangements for 

the exchange of Internet traffic, the open 

Internet rules we adopt today do not 

apply to that portion of the broadband 

Internet access service. 

1. Broadband Internet Access Service 

187. As discussed below, we continue 

to define ‘‘broadband Internet access 

service’’ (BIAS) 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. 

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. 

188. ‘‘Broadband Internet access 

service’’ continues to include 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. 

‘‘Broadband Internet access service’’ 

encompasses all providers of broadband 

Internet access service, as we delineate 

them here, regardless of whether they 

lease or own the facilities used to 

provide the service. (The Commission 

has consistently determined that 

resellers of telecommunications services 

are telecommunications carriers, even if 

they do not own any facilities. We note 

that the rules apply not only to 

facilities-based providers of broadband 

service but also to resellers of that 

service. In applying these obligations to 

resellers, we recognize, as the 

Commission has in other contexts, that 

consumers will expect the protections 

and benefits afforded by providers’ 

compliance with the rules, regardless of 

whether the consumer purchase service 

from a facilities-based provider or a 

reseller. We note that a reseller’s 

obligation under the rules is 

independent from the obligation of the 

facilities-based provider that supplies 

the underlying service to the reseller, 

though the extent of compliance by the 

underlying facilities-based provider will 

be a factor in assessing compliance by 

the reseller.) ‘‘Fixed’’ 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 network. 

The term encompasses the delivery of 

fixed broadband over any medium, 

including various forms of wired 

broadband services (e.g., cable, DSL, 

fiber), fixed wireless broadband services 

(including fixed services using 

unlicensed spectrum), and fixed 

satellite broadband services. ‘‘Mobile’’ 

broadband Internet access service refers 

to a broadband Internet access service 

that serves end users primarily using 

mobile stations. It also includes services 

that use smartphones or mobilenetwork-enabled tablets as the primary 

endpoints for connection to the Internet, 

(We note that ‘‘public safety services,’’ 

as defined in section 337 of the Act, are 

excluded from the definition of mobile 

broadband Internet access service.) as 

well as mobile satellite broadband 

services. (We provide these definitions 

of ‘‘fixed’’ and ‘‘mobile’’ for illustrative 

purposes. In contrast to the 

Commission’s 2010 Open Internet 


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Order, here we are applying the same 

regulations to both fixed and mobile 

broadband Internet access services.) 

189. We continue to define ‘‘mass 

market’’ as ‘‘a service marketed and sold 

on a standardized basis to residential 

customers, small businesses, and other 

end-user customers such as schools and 

libraries.’’ To be clear, ‘‘mass market’’ 

includes broadband Internet access 

services purchased with support of the 

E-rate and Rural Healthcare programs, 

as well as any broadband Internet access 

service offered using networks 

supported by the Connect America 

Fund (CAF). (In the 2010 Open Internet 

Order, the Commission found that 

‘‘mass market’’ included broadband 

Internet access services purchased with 

support of the E-rate program. Since that 

time, the Commission has extended 

universal service support for broadband 

services through the Lifeline and Rural 

Health Care programs. Thus, for the 

same reasons the Commission defined 

mass market services to include BIAS 

purchased with the support of the E-rate 

program in 2010, we now find that mass 

market also includes BIAS purchased 

with the support of Lifeline and Rural 

Health Care programs.) To the extent 

that institutions of higher learning 

purchase mass market services, those 

institutions would be included within 

the scope of the schools and libraries 

portion of our definition. The term 

‘‘mass market’’ does not include 

enterprise service offerings, which are 

typically offered to larger organizations 

through customized or individuallynegotiated arrangements, or special 

access services. 

190. We adopt our tentative 

conclusion in the 2014 Open Internet 

NPRM that broadband Internet access 

service does not include virtual private 

network (VPN) services, content 

delivery networks (CDNs), hosting or 

data storage services, or Internet 

backbone services (to the extent those 

services are separate from broadband 

Internet access service). The 

Commission has historically 

distinguished these services from ‘‘mass 

market’’ services and, as explained in 

the 2014 Open Internet NPRM, they ‘‘do 

not provide the capability to receive 

data from all or substantially all Internet 

endpoints.’’ We do not disturb that 

finding here. 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, he or 

she is not providing a broadband 

Internet access service under our 

definition. 

191. We again decline to apply the 

open Internet rules to premises 

operators—such as coffee shops, 

bookstores, airlines, private end-user 

networks (e.g. libraries and 

universities), and other businesses that 

acquire broadband Internet access 

service from a broadband provider to 

enable patrons to access the Internet 

from their respective establishments—to 

the extent they may be offering 

broadband Internet access service as we 

define it today. (While we decline to 

apply open Internet rules to premises 

operators to the extent they may offer 

broadband Internet access service, that 

decision does not affect other 

obligations that may apply to premises 

operators under the Act.) We find, as we 

did in 2010, that a premises operator 

that purchases BIAS is an end user and 

that these services ‘‘are typically offered 

by the premise operator as an ancillary 

benefit to patrons.’’ Further, applying 

the open Internet rules to the provision 

of broadband service by premises 

operators would have a dampening 

effect on these entities’ ability and 

incentive to offer these services. As 

such, we do not apply the open Internet 

rules adopted today to premises 

operators. (We reiterate the guidance in 

the 2010 Open Internet Order that 

although not bound by our rules, we 

encourage premises operators to 

disclose relevant restrictions on 

broadband service they make available 

to their patrons.) The record evinces no 

significant disagreement with this 

analysis. (We note, however, that this 

exception does not affect other 

obligations that a premise operator may 

have independent of our open Internet 

rules.) 

192. Our definition of broadband 

Internet access service includes services 

‘‘by wire or radio,’’ which encompasses 

mobile broadband service. Thus, our 

definition of broadband Internet access 

service also extends to the same services 

provided by mobile providers. As 

discussed above, the record 

demonstrates the pressing need to apply 

open Internet rules to fixed and mobile 

broadband services alike, and changes 

in the mobile marketplace no longer 

counsel in favor of treating mobile 

differently under the rules. Thus, we 

apply the open Internet rules adopted 

today to both fixed and mobile 

networks. (Although we adopt the same 

rules for both fixed and mobile services, 

we recognize that with respect to the 

reasonable network management 

exception, the rule may apply 

differently to fixed and mobile 

broadband providers.) 

193. As we discuss more fully below, 

broadband Internet access service 

encompasses the exchange of Internet 

traffic by an edge provider or an 

intermediary with the broadband 

provider’s network. Below, we find that 

broadband Internet access service is a 

telecommunications service, subject to 

sections 201, 202, and 208 (along with 

key enforcement provisions). (We note 

that broadband Internet access services 

are also subject to sections 222, 224, 

225, 254, and 255.) As a result, the 

Commission will be available to hear 

disputes regarding arrangements for the 

exchange of traffic with a broadband 

Internet access provider raised under 

sections 201 and 202 on a case-by-case 

basis: 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. 

However, for reasons discussed more 

fully below, we exclude this portion of 

broadband Internet access service— 

interconnection with a broadband 

Internet access service provider’s 

network—from application of our open 

Internet rules. We note that this 

exclusion also extends to 

interconnection with CDNs. 

2. Internet Traffic Exchange 

194. In the 2010 Open Internet Order, 

the Commission applied its open 

Internet rules ‘‘only as far as the limits 

of a broadband provider’s control over 

the transmission of data to or from its 

broadband customers,’’ and excluded 

the exchange of traffic between 

networks from the scope of the rules. In 

the 2014 Open Internet NPRM, the 

Commission tentatively concluded that 

it should maintain this approach, but 

explicitly sought comment on 

suggestions that the Commission should 

expand the scope of the open Internet 

rules to cover issues related to Internet 

traffic exchange. (As a general matter, 

Internet traffic exchange involves the 

exchange of IP traffic between networks. 

An Internet traffic exchange 

arrangement determines which 

networks exchange traffic and the 

destinations to which those networks 

will deliver that traffic. In aggregate, 

Internet traffic exchange arrangements 

allow an end user of the Internet to 

interact with other end users on other 

Internet networks, including content or 

services that make themselves available 

by having a public IP address, similar to 

how the global public switched 

telephone network consists of networks 

that route calls based on telephone 

numbers. When we adopted the 2014 

Open Internet NPRM, the Chairman 

issued a separate, written statement 

suggesting that ‘‘the question of 

interconnection (‘peering’) between the 


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consumer’s network provider and the 

various networks that deliver to that ISP 

. . . is a different matter that is better 

addressed separately.’’ 2014 Open 

Internet NPRM, 29 FCC Rcd at 5647. 

While this statement reflected the 

Notice’s tentative conclusion 

concerning Internet traffic exchange, it 

in no way detracts from the fact that the 

Notice also sought comment on 

‘‘whether we should change our 

conclusion,’’ whether to adopt 

proposals to ‘‘expand the scope of the 

open Internet rules to cover issues 

related to traffic exchange,’’ and how to 

‘‘ensure that a broadband provider 

would not be able to evade our open 

Internet rules by engaging in traffic 

exchange practices that would be 

outside the scope of the rules as 

proposed.’’) 

195. As discussed below, we classify 

fixed and mobile broadband Internet 

access service as telecommunications 

services. The definition for broadband 

Internet access service includes the 

exchange of Internet traffic by an edge 

provider or an intermediary with the 

broadband provider’s network. We note 

that anticompetitive and discriminatory 

practices in this portion of broadband 

Internet access service can have a 

deleterious effect on the open Internet, 

and therefore retain targeted authority to 

protect against such practices through 

sections 201, 202, and 208 of the Act 

(and related enforcement provisions), 

but will forbear from a majority of the 

other provisions of the Act. Thus, we 

conclude that, at this time, application 

of the no-unreasonable interference/

disadvantage standard and the 

prohibitions on blocking, throttling, and 

paid prioritization to the Internet traffic 

exchange arrangements is not 

warranted. 

196. Trends in Internet Traffic 

Exchange. Internet traffic exchange is 

typically based on commercial 

negotiations. Changes in consumer 

behavior, traffic volume, and traffic 

composition have resulted in new 

business models for interconnection. 

Since broadband Internet access service 

providers cannot, on their own, connect 

to every end point on the Internet in 

order to provide full Internet access to 

their customers, they historically paid 

third-party backbone service providers 

for transit. Backbone service providers 

interconnected upstream until traffic 

reached Tier 1 backbone service 

providers, which peered with each other 

and thereby provided their customer 

networks with access to the full 

Internet. In this hierarchical 

arrangement of networks, broadband 

Internet access providers negotiated 

with backbone service providers; 

broadband Internet access providers 

generally did not negotiate with edge 

providers to gain access to content. 

However, in recent years, new business 

models of Internet traffic exchange have 

emerged, premised on changes in traffic 

flows and in broadband Internet access 

provider networks. A number of factors 

drive these trends in Internet traffic 

exchange. 

197. Critically, the growth of online 

streaming video services has sparked 

further evolution of the Internet. 

Content providers have come to rely on 

the services of commercial and private 

CDNs, which cache content close to end 

users, providing increased quality of 

service and avoiding transit costs. While 

CDNs rely on transit to feed the array of 

CDN cache servers, they deliver traffic 

to broadband Internet access service 

providers via transit service or by 

entering into peering arrangements, 

directly interconnecting with broadband 

Internet access service providers. 

198. In addition, several large 

broadband Internet access service 

providers, such as AT&T, Comcast, 

Time Warner Cable, and Verizon, have 

built or purchased their own backbones, 

giving them the ability to directly 

interconnect with other networks and 

edge providers and thereby lowering 

and eliminating payments to third-party 

transit providers. These interconnection 

arrangements are ‘‘peering,’’ involving 

the exchange of traffic only between the 

two networks and their customers, 

rather than paid transit, which provides 

access to the full Internet over a single 

interconnection. Peering gives the 

participants greater control over their 

traffic and any issues arising with the 

traffic exchange are limited to those 

parties, and not other parties over other 

interconnection links. Historically, 

broadband Internet access service 

providers paid for transit and therefore 

had an incentive to agree to settlementfree peering with a CDN to reduce 

transit costs; however, where large 

broadband Internet access service 

providers have their own national 

backbones and have settlement-free 

peering with other backbones, they may 

no longer have an incentive to agree to 

settlement-free peering with CDNs in 

order to avoid transit costs. As shown 

below in Chart 1, the evolution from 

reliance on transit to peering 

arrangements also means an evolution 

from a traffic exchange arrangement that 

provides access to the full Internet to a 

traffic exchange arrangement that only 

provides for the exchange of traffic from 

a specific network provider and its 

customers. 


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199. Recent Disputes. Recently, 

Internet traffic exchange disputes have 

reportedly involved not de-peering, as 

was more frequently the case in the last 

decade, but rather degraded experiences 

caused by congested ports between 

providers. In addition, these disputes 

have evolved from conflicts that may 

last a few days, to disputes that have 

been sustained for well over a year, and 

have gone from disputes between 

backbone service networks, to disputes 

between providers of broadband 

Internet access service and transit 

service providers, CDNs, or edge 

providers. The typical dispute has 

involved, on one side, a large broadband 

provider, and on the other side, a 

commercial transit provider (such as 

Cogent or Level 3) and/or a large CDN. 

Multiple parties point out, however, 

that interconnection problems can harm 

more than just the parties in a dispute. 

When links are congested and capacity 

is not augmented, the networks—and 

applications, large and small, running 

over the congested links into and out of 

those networks—experience degraded 

quality of service due to reduced 

throughput, increased packet loss, 

increased delay, and increased jitter. At 

the end of the day, consumers bear the 

harm when they experience degraded 

access to the applications and services 

of their choosing due to a dispute 

between a large broadband provider and 

an interconnecting party. Parties also 

assert that these disputes raise concerns 

about public safety and network 

reliability. To address these growing 

concerns, a number of parties have 

called for extending the rules proposed 

in the 2014 Open Internet NPRM to 

Internet traffic exchange practices. 

200. The record reflects competing 

narratives. Some edge and transit 

providers assert that large broadband 

Internet access service providers are 

creating artificial congestion by refusing 

to upgrade interconnection capacity at 

their network entrance points for 

settlement-free peers or CDNs, thus 

forcing edge providers and CDNs to 

agree to paid peering arrangements. 

These parties suggest that paid 

arrangements resulting from artificially 

congested interconnection ports at the 

broadband Internet access service 

provider network edge could create the 

same consumer harms as paid 

arrangements in the last-mile, and lead 

to paid prioritization, fast lanes, 

degradation of consumer connections, 

and ultimately, stifling of innovation by 

edge providers. Further, edge providers 

argue that they are covering the costs of 

carrying this traffic through the 

network, bringing it to the gateway of 

the Internet access service, unlike in the 

past where both parties covered their 

own costs to reach the Tier 1 backbones 

where traffic would then be exchanged 

on a settlement-free basis. Edge and 

transit providers argue that the costs of 

adding interconnection capacity or 

directly connecting with edge providers 

are de minimis. Further, they assert that 

traffic ratios ‘‘are arbitrarily set and 

enforced and are not reflective of how 

[broadband providers] sell broadband 

connections and how consumers use 

them.’’ Thus, these edge and transit 

providers assert that a focus on only the 

last-mile portion of the Internet traffic 

path will fail to adequately constrain the 

potential for anticompetitive behavior 

on the part of broadband Internet access 

service providers that serve as 

gatekeepers to the edge providers, 

transit providers, and CDNs seeking to 

deliver Internet traffic to the broadband 

providers’ end users. 

201. In contrast, large broadband 

Internet access service providers assert 

that edge providers such as Netflix are 

imposing a cost on broadband Internet 

access service providers who must 

constantly upgrade infrastructure to 

keep up with the demand. Large 

broadband Internet access service 

providers explain that when an edge 

provider sends extremely large volumes 

of traffic to a broadband Internet access 

service provider—e.g., through a CDN or 

a third-party transit service provider— 

the broadband provider must invest in 

additional interconnection capacity 

(e.g., new routers or ports on existing 

routers) and middle-mile transport 

capacity in order to accommodate that 

traffic, exclusive of ‘‘last-mile’’ costs 

from the broadband Internet access 

provider’s central offices, head ends, or 

cell sites to end-user locations. 

Commenters assert that if the broadband 

Internet access service provider absorbs 

these interconnection and transport 

costs, all of the broadband provider’s 

subscribers will see their bills rise. They 

argue that this is unfair to subscribers 

who do not use the services, like 

Netflix, that are driving the need for 

additional capacity. Broadband Internet 


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access service providers explain that 

settlement-free peering fundamentally is 

a barter arrangement in which each side 

receives something of value. These 

parties contend that if the other party is 

only sending traffic, it is not 

contributing something of value to the 

broadband Internet access service 

provider. 

202. Mechanism to Resolve Traffic 

Exchange Disputes. As discussed, 

Internet traffic exchange agreements 

have historically been and will continue 

to be commercially negotiated. We do 

not believe that it is appropriate or 

necessary to subject arrangements for 

Internet traffic exchange (which are 

subsumed within broadband Internet 

access service) to the rules we adopt 

today. We conclude that it would be 

premature to adopt prescriptive rules to 

address any problems that have arisen 

or may arise. (We decline to adopt these 

and similar types of proposals for the 

same reasons we decline to apply the 

open Internet rules to traffic exchange.) 

It is also premature to draw policy 

conclusions concerning new paid 

Internet traffic exchange arrangements 

between broadband Internet access 

service providers and edge providers, 

CDNs, or backbone services. (For 

instance, Akamai expresses concern that 

adoption of rules governing 

interconnection could be used as a 

justification by some broadband 

providers to refuse direct 

interconnection to CDNs and other 

content providers generally, on the 

theory that connecting with any CDN 

necessitates connecting with all CDNs, 

regardless of technical feasibility. We do 

not intend such a result by our decision 

today to assert authority over 

interconnection.) While the substantial 

experience the Commission has had 

over the last decade with ‘‘last-mile’’ 

conduct gives us the understanding 

necessary to craft specific rules based on 

assessments of potential harms, we lack 

that background in practices addressing 

Internet traffic exchange. For this 

reason, we adopt a case-by-case 

approach, which will provide the 

Commission with greater experience. 

Thus, we will continue to monitor 

traffic exchange and developments in 

this market. 

203. At this time, we believe that a 

case-by-case approach is appropriate 

regarding Internet traffic exchange 

arrangements between broadband 

Internet access service providers and 

edge providers or intermediaries—an 

area that historically has functioned 

without significant Commission 

oversight. (We note, however, that the 

Commission has looked at traffic 

exchange in the context of mergers and, 

sometimes imposed conditions on 

traffic exchange.) Given the constantly 

evolving market for Internet traffic 

exchange, we conclude that at this time 

it would be difficult to predict what 

new arrangements will arise to serve 

consumers’ and edge providers’ needs 

going forward, as usage patterns, 

content offerings, and capacity 

requirements continue to evolve. Thus, 

we will rely on the regulatory backstop 

prohibiting common carriers from 

engaging in unjust and unreasonable 

practices. Our ‘‘light touch’’ approach 

does not directly regulate 

interconnection practices. Of course, 

this regulatory backstop is not a 

substitute for robust competition. The 

Commission’s regulatory and 

enforcement oversight, including over 

common carriers, is complementary to 

vigorous antitrust enforcement. Indeed, 

mobile voice services have long been 

subject to Title II’s just and reasonable 

standard and both the Commission and 

the Antitrust Division of the Department 

of Justice have repeatedly reviewed 

mergers in the wireless industry. Thus, 

it will remain essential for the 

Commission, as well as the Department 

of Justice, to continue to carefully 

monitor, review, and where appropriate, 

take action against any anti-competitive 

mergers, acquisitions, agreements or 

conduct, including where broadband 

Internet access services are concerned. 

204. Broadband Internet access 

service involves the exchange of traffic 

between a last-mile broadband provider 

and connecting networks. (We disagree 

with commenters who argue that 

arrangements for Internet traffic 

exchange are private carriage 

arrangements, and thus not subject to 

Title II. As we explain below in today’s 

Declaratory Ruling, Internet traffic 

exchange is a component of broadband 

Internet access service, which meets the 

definition of ‘‘telecommunications 

service.’’) The 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. As a telecommunications 

service, broadband Internet access 

service implicitly includes an assertion 

that the broadband provider will make 

just and reasonable efforts to transmit 

and deliver its customers’ traffic to and 

from ‘‘all or substantially all Internet 

endpoints’’ under sections 201 and 202 

of the Act. In any event, BIAS provider 

practices with respect to such 

arrangements are plainly ‘‘for and in 

connection with’’ the BIAS service. 

Thus, disputes involving a provider of 

broadband Internet access service 

regarding Internet traffic exchange 

arrangements that interfere with the 

delivery of a broadband Internet access 

service end user’s traffic are subject to 

our authority under Title II of the Act. 

(We note that the Commission has 

forborne from application of many of 

the requirements of Title II to broadband 

Internet access service.) 

205. We conclude that our actions 

regarding Internet traffic exchange 

arrangements are reasonable based on 

the record before us, which 

demonstrates that broadband Internet 

access providers have the ability to use 

terms of interconnection to 

disadvantage edge providers and that 

consumers’ ability to respond to unjust 

or unreasonable broadband provider 

practices are limited by switching costs. 

These findings are limited to the 

broadband Internet access services we 

address today. (We observe that should 

a complaint arise regarding BIAS 

provider Internet traffic exchange 

practices, practices by edge providers 

(and their intermediaries) would be 

considered as part of the Commission’s 

evaluation as to whether BIAS provider 

practices were ‘‘just and reasonable’’ 

under the Act.) When Internet traffic 

exchange breaks down—regardless of 

the cause—it risks preventing 

consumers from reaching the services 

and applications of their choosing, 

disrupting the virtuous cycle. We 

recognize the importance of timely 

review in the midst of commercial 

disputes. The Commission will be 

available to hear disputes raised under 

sections 201 and 202 on a case-by-case 

basis. We believe this is an appropriate 

vehicle for enforcement where disputes 

are primarily between sophisticated 

entities over commercial terms and that 

include companies, like transit 

providers and CDNs, that act on behalf 

of smaller edge providers. We also 

observe that section 706 provides the 

Commission with an additional, 

complementary source of authority to 

ensure that Internet traffic exchange 

practices do not harm the open Internet. 

As explained above, we have decided 

not to adopt specific regulations that 

would detail the practices that would 

constitute circumvention of the open 

Internet regulations we adopt today. 

Instead, and in a manner similar to our 

treatment of non-BIAS services, we will 

continue to monitor Internet traffic 

exchange arrangements and have the 

authority to intervene to ensure that 

they are not harming or threatening to 

harm the open nature of the Internet. 

206. The record also reflects a concern 

that our decision to adopt this 

regulatory backstop violates the 


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Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19769 

Administrative Procedure Act. (Verizon 

claims that ‘‘in light of the 

Commission’s past statements on 

interconnection, to suddenly regulate 

[interconnection] agreements for the 

first time in a final rule in this 

proceeding would violate the notice and 

comment requirements of the 

Administrative Procedure Act’’ and that 

even issuing a Further Notice of 

Proposed Rulemaking would not allow 

the Commission to impose Title II 

regulations on interconnection services. 

The dissenting statements likewise 

assert that the 2014 Open Internet 

NPRM did not provide notice of the 

possibility that the Commission would 

assert authority over interconnection.) 

We disagree. To be clear, consistent 

with the NPRM’s proposal, we are not 

applying the open Internet rules we 

adopt today to Internet traffic exchange. 

Rather, certain regulatory consequences 

flow from the Commission’s 

classification of BIAS, including the 

traffic exchange component, as falling 

within the ‘‘telecommunications 

services’’ definition in the Act. In all 

events, the 2014 Open Internet NPRM 

provided clear notice about the 

possibility of expanding the scope of the 

open Internet rules to cover issues 

related to traffic exchange. (Section 553 

provides that ‘‘[g]eneral notice of 

proposed rulemaking shall be published 

in the Federal Register,’’ and that 

‘‘[a]fter notice required by this section, 

the agency shall give interested persons 

an opportunity to participate in the rule 

making’’ through submission of 

comments. 5 U.S.C. 553(b), (c). The 

Commission published the NPRM in the 

Federal Register at 79 FR 37448, July 1, 

2014. It also made clear that the 

Commission was considering whether to 

reclassify retail broadband services. In 

addition, the 2014 Open Internet NPRM 

asked: ‘‘How can we ensure that a 

broadband provider would not be able 

to evade our open Internet rules by 

engaging in traffic exchange practices 

that would be outside the scope of the 

rules as proposed?’’ As discussed above, 

our assertion of authority over Internet 

traffic exchange practices addresses that 

question by providing us with the 

necessary case-by-case enforcement 

tools to identify practices that may 

constitute such evasion and address 

them. Further, to the extent that any 

doubts remain about whether the 2014 

Open Internet NPRM provided sufficient 

notice, the approach adopted today is 

also a logical outgrowth of the original 

proposal included in the 2014 Open 

Internet NPRM. The numerous 

submissions in the record at every stage 

of the proceeding seeking to influence 

the Commission in its decision to adopt 

policies regulating Internet traffic 

exchange illustrate that the Commission 

not only gave interested parties 

adequate notice of the possibility of a 

rule, but that parties considered 

Commission action on that proposal a 

real possibility. 

3. Non-BIAS Data Services 

207. In the 2014 Open Internet NPRM, 

the Commission tentatively concluded 

that it should not apply its conductbased rules to services offered by 

broadband providers that share capacity 

with broadband Internet access service 

over providers’ last-mile facilities, while 

closely monitoring the development of 

these services to ensure that broadband 

providers are not circumventing the 

open Internet rules. After reviewing the 

record, we believe the best approach is 

to adopt this tentative conclusion to 

permit broadband providers to offer 

these types of services while continuing 

to closely monitor their development 

and use. While the 2010 Open Internet 

Order and the 2014 Open Internet 

NPRM used the term ‘‘specialized 

services’’ to refer to these types of 

services, the term ‘‘non-BIAS data 

services’’ is a more accurate description 

for this class of services. While the 

services discussed below are not 

broadband Internet access service, and 

thus the rules we adopt do not apply to 

these services, we emphasize that we 

will act decisively in the event that a 

broadband provider attempts to evade 

open Internet protections (e.g., by 

claiming that a service that is the 

equivalent of Internet access is a nonBIAS data service not subject to the 

rules we adopt today). 

208. We provide the following 

examples of services and characteristics 

of those services that, at this time, likely 

fit within the category of services that 

are not subject to our conduct-based 

rules. As indicated in the 2010 Open 

Internet Order, some broadband 

providers’ existing facilities-based VoIP 

and Internet Protocol-video offerings 

would be considered non-BIAS data 

services under our rules. Further, the 

2010 Open Internet Order also noted 

that connectivity bundled with ereaders, heart monitors, or energy 

consumption sensors would also be 

considered other data services to the 

extent these services are provided by 

broadband providers over last-mile 

capacity shared with broadband Internet 

access service. Additional examples of 

non-BIAS data services may include 

limited-purpose devices such as 

automobile telematics, and services that 

provide schools with curriculumapproved applications and content. 

209. These services may generally 

share the following characteristics 

identified by the Open Internet 

Advisory Committee. First, these 

services are not used to reach large parts 

of the Internet. Second, these services 

are not a generic platform—but rather a 

specific ‘‘application level’’ service. 

And third, these services use some form 

of network management to isolate the 

capacity used by these services from 

that used by broadband Internet access 

services. 

210. We note, however, that non-BIAS 

data services may still be subject to 

enforcement action. Similar to the 

Commission’s approach in 2010, if the 

Commission determines that a 

particular service is ‘‘providing a 

functional equivalent of broadband 

Internet access service, or . . . is [being] 

used to evade the protections set forth 

in these rules,’’ we will take appropriate 

enforcement action. Further, if the 

Commission determines that these types 

of service offerings are undermining 

investment, innovation, competition, 

and end-user benefits, we will similarly 

take appropriate action. We are 

especially concerned that over-the-top 

services offered over the Internet are not 

impeded in their ability to compete with 

other data services. (Further, we 

anticipate that consumers of competing 

over-the-top services will not be 

disadvantaged in their ability to access 

911 service.) 

211. The record overwhelmingly 

supports our decision to continue 

treating non-BIAS data services 

differently than broadband Internet 

access service under the open Internet 

rules. This approach will continue to 

drive additional investment in 

broadband networks and provide end 

users with valued services without 

otherwise constraining innovation. 

Further, as noted by numerous 

commenters, since other data services 

were permitted in the 2010 Open 

Internet Order, we have seen little 

resulting evidence of broadband 

providers using these services to 

undermine the 2010 rules. 

212. Nevertheless, non-BIAS data 

services still could be used to evade the 

open Internet rules. Due to these 

concerns, we will continue to monitor 

the market for non-BIAS data services to 

ensure that these services are not 

causing or threatening to cause harm to 

the open nature of the Internet. Since 

the 2010 Open Internet Order, 

broadband Internet access providers 

have been required to disclose the 

impact of non-BIAS data services on the 

performance of and the capacity 

available for broadband Internet access 

services. As discussed in detail above, 


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we will continue to monitor the 

existence and effects of non-BIAS data 

services under the broadband providers’ 

transparency obligations. 

213. We disagree with commenters 

who argue that the Commission should 

adopt a more-detailed definition for 

non-BIAS data services to safeguard 

against any such circumvention of the 

rules. Several commenters provided 

definitions of what they believe should 

constitute non-BIAS data services. 

Others, however, expressed concerns 

that a formal definition of non-BIAS 

data services risks potentially limiting 

future innovation and investment, 

ultimately negatively impacting 

consumer welfare. We share these 

concerns and thus decline to further 

define what constitutes ‘‘non-BIAS data 

services’’ or adopt additional policies 

specific to such services at this time. 

Again, however, we will closely monitor 

the development and use of non-BIAS 

data services and have authority to 

intervene if these services are utilized in 

a manner that harms the open Internet. 

4. Reasonable Network Management 

214. The 2014 Open Internet NPRM 

proposed to retain a reasonable network 

management exception to the conductbased open Internet rules, following the 

approach adopted in the 2010 Open 

Internet Order that permitted exceptions 

for ‘‘reasonable network management’’ 

practices to the no-blocking and no 

unreasonable discrimination rules. The 

2014 Open Internet NPRM also 

tentatively concluded that the 

Commission should retain the definition 

of reasonable network management 

adopted as part of the 2010 rules that 

‘‘[a] network management practice is 

reasonable if it is 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.’’ 

215. The record broadly supports 

maintaining an exception for reasonable 

network management. We agree that a 

network management exception to the 

no-blocking rule, the no-throttling rule, 

and the no-unreasonable interference/

disadvantage standard is necessary for 

broadband providers to optimize overall 

network performance and maintain a 

consistent quality experience for 

consumers while carrying a variety of 

traffic over their networks. (As 

discussed above, the transparency rule 

does not include an exception for 

reasonable network management. We 

clarify, however, that the transparency 

rule ‘‘does not require public disclosure 

of competitively sensitive information 

or information that would compromise 

network security or undermine the 

efficacy of reasonable network 

management practices.’’) Therefore, the 

no-blocking rule, the no-throttling rule, 

and the no-unreasonable interference/

disadvantage standard will be subject to 

reasonable network management for 

both fixed and mobile providers of 

broadband Internet access service. In 

addition to retaining the exception, we 

retain the definition of reasonable 

network management with slight 

modifications: 

A network management practice is a 

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. 

216. For a practice to even be 

considered under this exception, a 

broadband Internet access service 

provider must first show that the 

practice is primarily motivated by a 

technical network management 

justification rather than other business 

justifications. If a practice is primarily 

motivated by such an other justification, 

such as a practice that permits different 

levels of network access for similarly 

situated users based solely on the 

particular plan to which the user has 

subscribed, then that practice will not 

be considered under this exception. The 

term ‘‘particular network architecture 

and technology’’ refers to the differences 

across broadband access platforms of 

any kind, including cable, fiber, DSL, 

satellite, unlicensed Wi-Fi, fixed 

wireless, and mobile wireless. 

217. As noted above, reasonable 

network management is an exception to 

the no-blocking rule, no-throttling rule, 

and no-unreasonable interference/

disadvantage standard, but not to the 

rule against paid prioritization. (Paid 

prioritization would be evaluated under 

the standards set forth in section II.C.1.c 

supra) This is because unlike conduct 

implicating the no-blocking, nothrottling, or no-unreasonable 

interference/disadvantage standard, 

paid prioritization is not a network 

management practice because it does 

not primarily have a technical network 

management purpose. (For purposes of 

the open Internet rules, prioritization of 

affiliated content, applications, or 

services is also considered a form of 

paid prioritization.) When considering 

whether a practice violates the noblocking rule, no-throttling rule, or nounreasonable interference/disadvantage 

standard, the Commission may first 

evaluate whether a practice falls within 

the exception for reasonable network 

management. 

218. Evaluating Network Management 

Practices. The 2014 Open Internet 

NPRM proposed that the Commission 

adopt the same approach for 

determining the scope of network 

management practices considered to be 

reasonable as adopted in the 2010 Open 

Internet Order. (The Commission 

decided to determine the scope of 

reasonable network management on a 

case-by-case basis in the Open Internet 

Order and we maintain those same 

factors today.) We recognize the need to 

ensure that the reasonable network 

management exception will not be used 

to circumvent the open Internet rules 

while still allowing broadband 

providers flexibility to experiment and 

innovate as they reasonably manage 

their networks. We therefore elect to 

maintain a case-by-case approach. The 

case-by-case review also allows 

sufficient flexibility to address mobilespecific management practices because, 

by the terms of our rule, a determination 

of whether a network management 

practice is reasonable takes into account 

the particular network architecture and 

technology. We also note that our 

transparency rule requires disclosures 

that provide an important mechanism 

for monitoring whether providers are 

inappropriately exploiting the exception 

for reasonable network management. 

219. To provide greater clarity and 

further inform the Commission’s caseby-case analysis, we offer the following 

guidance regarding legitimate network 

management purposes. We also note 

that, similar to the 2010 reasonable 

network management exception, 

broadband providers may request a 

declaratory ruling or an advisory 

opinion from the Commission before 

deploying a network management 

practice, but are not required to do so. 

220. As with the network 

management exception in the 2010 

Open Internet Order, broadband 

providers may implement network 

management practices that are primarily 

used for, and tailored to, ensuring 

network security and integrity, 

including by addressing traffic that is 

harmful to the network, such as traffic 

that constitutes a denial-of-service 

attack on specific network infrastructure 

elements. Likewise, broadband 

providers may also implement network 

management practices that are primarily 

used for, and tailored to, addressing 

traffic that is unwanted by end users. 

Further, we reiterate the guidance of the 

2010 Open Internet Order that network 

management practices that alleviate 

congestion without regard to the source, 

destination, content, application, or 


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service are also more likely to be 

considered reasonable network 

management practices in the context of 

this exception. (As in the no throttling 

rule and the no unreasonable 

interference or unreasonable 

disadvantage standard, we include 

classes of content, applications, 

services, or devices.) In evaluating 

congestion management practices, a 

subset of network management 

practices, we will also consider whether 

the practice is triggered only during 

times of congestion and whether it is 

based on a user’s demand during the 

period of congestion. 

221. We also recognize that some 

network management practices may 

have a legitimate network management 

purpose, but also may be exploited by 

a broadband provider. We maintain the 

guidance underlying the 2010 Open 

Internet Order’s case-by-case analysis 

that a network management practice is 

more likely to be found reasonable if it 

is transparent, and either allows the end 

user to control it or is applicationagnostic. 

222. As in 2010, we decline to adopt 

a more detailed definition of reasonable 

network management. For example, one 

proposal suggests that the Commission 

limit the circumstances in which 

network management techniques can be 

used so they would only be reasonable 

if they were used temporarily, for 

exceptional circumstances, and have a 

proportionate impact to solve a targeted 

problem. We acknowledge the 

advantages a more detailed definition of 

network management can have on longterm network investment and 

transparency, but at this point, there is 

not a need to place such proscriptive 

limits on broadband providers. (While 

some commenters note that there have 

not been any major technological 

changes in how broadband providers 

manage traffic since 2010, others 

indicate that broadband providers have 

acquired additional techniques that 

allow them to manage traffic in realtime.) Furthermore, a more detailed 

definition of reasonable network 

management risks quickly becoming 

outdated as technology evolves. Caseby-case analysis will allow the 

Commission to use the conduct-based 

rules adopted today to take action 

against practices that are known to harm 

consumers without interfering with 

broadband providers’ beneficial network 

management practices. (Beneficial 

practices include protecting their 

Internet access services against 

malicious content or offering a service 

limited to offering ‘‘family friendly’’ 

materials to end users who desire only 

such content.) 

223. We believe that the reasonable 

network management exception 

provides both fixed and mobile 

broadband providers sufficient 

flexibility to manage their networks. We 

recognize, consistent with the 

consensus in the record, that the 

additional challenges involved in 

mobile broadband network management 

mean that mobile broadband providers 

may have a greater need to apply 

network management practices, 

including mobile-specific network 

management practices, and to do so 

more often to balance supply and 

demand while accommodating mobility. 

As the Commission observed in 2010, 

mobile network management practices 

must address dynamic conditions that 

fixed, wired networks typically do not, 

such as the changing location of users 

as well as other factors affecting signal 

quality. The ability to address these 

dynamic conditions in mobile network 

management is especially important 

given capacity constraints many mobile 

broadband providers face. Moreover, 

notwithstanding any limitations on 

mobile network management practices 

necessary to protect the open Internet, 

we anticipate that mobile broadband 

providers will continue to be able to use 

a multitude of tools to manage their 

networks, including an increased 

number of network management tools 

available in 4G LTE networks. 

224. We note in a similar vein that 

providers relying on unlicensed Wi-Fi 

networks have specific network 

management needs. For example, these 

providers can ‘‘face spectrum 

constraints and congestion issues that 

can pose particular networkmanagement challenges’’ and also 

‘‘must accept and manage interference 

from other users in the unlicensed 

bands.’’ Again, the Commission will 

take into account when and how 

network management measures are 

applied as well as the particular 

network architecture and technology of 

the broadband Internet access service in 

question, in determining if a network 

management practice is reasonable. For 

these reasons, we reject the argument 

that rules with exceptions only for 

reasonable network management 

practices would ‘‘tie the hands of 

operators and make it more challenging 

to meet consumers’ needs’’ or that ‘‘the 

mere threat of post hoc regulatory 

review . . . would disrupt and could 

chill optimal network management 

practices.’’ In recognizing the unique 

challenges, network architecture, and 

network management of mobile 

broadband networks (and others, such 

as unlicensed Wi-Fi networks), we 

conclude that the reasonable network 

management exception addresses this 

concern and strikes an appropriate 

balance between the need for flexibility 

and ensuring the Commission has the 

tools necessary to maintain Internet 

openness. 

E. Enforcement of the Open Internet 

Rules 

1. Background 

225. Timely and effective enforcement 

of the rules we adopt in this Order is 

crucial to preserving an open Internet, 

enhancing competition and innovation, 

and providing clear guidance to 

consumers and other stakeholders. As 

has been the case since we adopted our 

original open Internet rules in 2010, we 

anticipate that many disputes that will 

arise can and should be resolved by the 

parties without Commission 

involvement. We encourage parties to 

resolve disputes through informal 

discussions and private negotiations 

whenever possible. To the extent 

disputes are not resolved, the 

Commission will continue to provide 

backstop mechanisms to address them. 

We also will proactively monitor 

compliance and take strong enforcement 

action against parties who violate the 

open Internet rules. 

226. In the 2010 Open Internet Order, 

the Commission established a two-tiered 

framework for enforcing open Internet 

rules. The Commission allowed parties 

to file informal complaints pursuant to 

section 1.41 of our rules and 

promulgated new procedures to govern 

formal complaints alleging violations of 

the open Internet rules. This framework 

was not affected by the D.C. Circuit’s 

decision in Verizon. It therefore remains 

in effect and will apply to complaints 

regarding the rules we adopt in this 

Order. Informal complaints provide end 

users, edge providers, and others with a 

simple and efficient vehicle for bringing 

potential open Internet violations to the 

attention of the Commission. The formal 

complaint rules permit any person to 

file a complaint with the Commission 

alleging an open Internet rule violation 

and to participate in an adjudicatory 

proceeding to resolve the complaint. In 

addition to these mechanisms for 

resolving open Internet complaints, the 

Commission continuously monitors 

press reports and other public 

information, which may lead the 

Enforcement Bureau to initiate an 

investigation of potential open Internet 

rule violations. 

227. In the 2014 Open Internet NPRM, 

the Commission sought comment on the 

efficiency and functionality of the 

complaint processes adopted in the 


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2010 Open Internet Order and on 

mechanisms we should consider to 

improve enforcement and dispute 

resolution. We tentatively concluded 

that our open Internet rules should 

include at least three fundamental 

elements: (1) Legal certainty, so that 

broadband providers, edge providers, 

and end users can plan their activities 

based on clear Commission guidance; 

(2) flexibility to consider the totality of 

the facts in an environment of dynamic 

innovation; and (3) effective access to 

dispute resolution. We affirm the 

importance of these principles below 

and discuss several enhancements to 

our existing open Internet complaint 

rules to advance them. In addition, we 

adopt changes to our complaint 

processes to ensure that they are 

accessible and user-friendly to 

consumers, small businesses, and other 

interested parties, as well as changes to 

ensure that that our review of 

complaints is inclusive and informed by 

groups with relevant technical or other 

expertise. 

2. Designing an Effective Enforcement 

Process 

a. Legal Certainty 

228. We sought comment in the 2014 

Open Internet NPRM on ways to design 

an effective enforcement process that 

provides legal certainty and 

predictability to the marketplace. In 

addition to our current complaint 

resolution framework, we requested 

input on what other forms of guidance 

would be helpful. We solicited feedback 

on whether the Commission should: (1) 

Establish an advisory opinion process, 

akin to ‘‘business review letters’’ issued 

by the Department of Justice (DOJ), and/ 

or non-binding staff opinions, through 

which parties could ask the Commission 

for a statement of its current 

enforcement intentions with respect to 

certain practices under the new rules; 

and (2) publish enforcement advisories 

that provide additional insight into the 

application of the rules. Many 

commenters recognized the benefits of 

clear rules and greater predictability 

regarding open Internet protections. 

(i) Advisory Opinions 

229. We conclude that use of advisory 

opinions similar to those issued by 

DOJ’s Antitrust Division is in the public 

interest and would advance the 

Commission’s goal of providing legal 

certainty. (We decline to adopt nonbinding staff opinions in light of our 

decision to establish an advisory 

opinion process similar to the DOJ 

Antitrust Division’s business review 

letter approach, as well as existing 

voluntary mediation processes to 

resolve open Internet disputes that are 

available through the Enforcement 

Bureau’s Market Disputes and 

Resolutions Division.) Although the 

Commission historically has not used 

advisory opinions to promote 

compliance with our rules, we conclude 

that they have the potential to serve as 

useful tools to provide clarity, guidance, 

and predictability concerning the open 

Internet rules. (Parties also have the 

option to file a petition for declaratory 

ruling under section 1.2 of the 

Commission’s rules, 47 CFR 1.2. In 

contrast to declaratory rulings, advisory 

opinions may only relate to prospective 

conduct, and the Enforcement Bureau 

will not seek comment on advisory 

opinions via public notice.) Advisory 

opinions will enable companies to seek 

guidance on the propriety of certain 

open Internet practices before 

implementing them, enabling them to be 

proactive about compliance and avoid 

enforcement actions later. The 

Commission may use advisory opinions 

to explain how it will evaluate certain 

types of behavior and the factors that 

will be considered in determining 

whether open Internet violations have 

occurred. Because these opinions will 

be publicly available, we believe that 

they will reduce the number of disputes 

by providing guidance to the industry. 

230. In this Order, we adopt rules 

promulgating basic requirements for 

obtaining advisory opinions, as well as 

limitations on their issuance. Any entity 

that is subject to the Commission’s 

jurisdiction may request an advisory 

opinion regarding its own proposed 

conduct that may implicate the rules we 

adopt in this Order, the rules that 

remain in effect from the 2010 Open 

Internet Order, or any other rules or 

policies related to the open Internet that 

may be adopted in the future. 

231. Requests for advisory opinions 

may be filed via the Commission’s Web 

site or with the Office of the Secretary 

and must be copied to the Commission 

staff specified in the rules. We delegate 

authority to issue advisory opinions to 

the Enforcement Bureau, which will 

coordinate with other Bureaus and 

Offices on the issuance of opinions. The 

Enforcement Bureau will have 

discretion to choose whether it will 

respond to the request. If the Bureau 

declines to respond to a request, it will 

inform the requesting party in writing. 

As a general matter, the Bureau will be 

more likely to respond to requests 

where the proposed conduct involves a 

substantial question of fact or law and 

there is no clear Commission or court 

precedent, or the subject matter of the 

request and consequent publication of 

Commission advice is of significant 

public interest. In addition, the Bureau 

will decline to respond to requests if the 

same conduct is the subject of a current 

government investigation or proceeding, 

including any ongoing litigation or open 

rulemaking. 

232. Requests for advisory opinions 

must relate to prospective or proposed 

conduct that the requesting party 

intends to pursue. The Enforcement 

Bureau will not respond to hypothetical 

questions or inquiries about proposals 

that are mere possibilities. The Bureau 

also will not respond to requests for 

opinions that relate to ongoing or prior 

conduct, and the Bureau may initiate an 

enforcement investigation to determine 

whether such conduct violates the open 

Internet rules. 

233. Requests for advisory opinions 

should include all material information 

sufficient for Commission staff to make 

a determination on the proposed 

conduct; however, staff will have 

discretion to ask parties requesting 

opinions, as well as other parties that 

may have information relevant to the 

request or that may be impacted by the 

proposed conduct, for additional 

information that the staff deems 

necessary to respond to the request. 

Because advisory opinions will rely on 

full and truthful disclosures by the 

requesting entities, requesters must 

certify that factual representations made 

to the Enforcement Bureau are truthful 

and accurate, and that they have not 

intentionally omitted any material 

information from the request. Advisory 

opinions will expressly state that they 

rely on the representations made by the 

requesting party, and that they are 

premised on the specific facts and 

representations in the request and any 

supplemental submissions. 

234. Although the Enforcement 

Bureau will attempt to respond to 

requests for advisory opinions 

expeditiously, we decline to establish 

any firm deadlines to rule on them or 

issue response letters. The Commission 

appreciates that if the advisory opinion 

process is not timely, it will be less 

valuable to interested parties. However, 

response times will likely vary based on 

numerous factors, including the nature 

and complexity of the issues, the 

magnitude and sufficiency of the 

request and the supporting information, 

and the time it takes for the requester to 

respond to staff requests for additional 

information. An advisory opinion will 

provide the Enforcement Bureau’s 

conclusion regarding whether or not the 

proposed conduct will comply with the 

open Internet rules. The Bureau will 

have discretion to indicate in an 

advisory opinion that it does not intend 


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to take enforcement action based on the 

facts, representations, and warranties 

made by the requesting party. The 

requesting party may rely on the 

opinion only to the extent that the 

request fully and accurately contains all 

the material facts and representations 

necessary for the opinion and the 

situation conforms to the situation 

described in the request for opinion. 

The Enforcement Bureau will not bring 

an enforcement action against a 

requesting party with respect to any 

action taken in good faith reliance upon 

an advisory opinion if all of the relevant 

facts were fully, completely, and 

accurately presented to the Bureau, and 

where such action was promptly 

discontinued upon notification of 

rescission or revocation of the 

Commission’s or the Bureau’s approval. 

235. Advisory opinions will be issued 

without prejudice to the Enforcement 

Bureau’s ability to reconsider the 

questions involved, or to rescind or 

revoke the opinion. Similarly, because 

advisory opinions issued at the staff 

level are not formally approved by the 

full Commission, they will be issued 

without prejudice to the Commission’s 

right to later rescind the findings in the 

opinion. Because advisory opinions will 

address proposed future conduct, they 

necessarily will not concern any case or 

controversy that is ripe for appeal. 

236. The Enforcement Bureau will 

make advisory opinions available to the 

public. In order to provide meaningful 

guidance to other stakeholders, the 

Bureau will also publish the initial 

request for guidance and any associated 

materials. Thus, the rules that we adopt 

establish procedures for entities 

soliciting advisory opinions to request 

confidential treatment of certain 

information. 

237. Many commenters support the 

use of advisory opinions as a means for 

the Commission to provide authoritative 

guidance to parties about the 

application of open Internet rules and 

the Commission’s enforcement 

intentions. In addition, some 

commenters suggest that review letters 

and staff opinions should be voluntary. 

We agree that solicitation of advisory 

opinions should be purely voluntary, 

and that failure to seek such an opinion 

will not be used as evidence that an 

entity’s practices are inconsistent with 

our rules. 

238. The Wireless Internet Service 

Providers Association (WISPA) opposes 

the adoption of an advisory opinion 

process ‘‘because it assumes an inherent 

uncertainty in the rules and creates a 

‘mother may I’ regime—essentially 

creating a system where a broadband 

provider must ask the Commission for 

permission when making business 

decisions.’’ According to WISPA, ‘‘[t]his 

system would increase regulatory 

uncertainty and stifle broadband 

providers from innovating new 

technologies or business methods. It 

also would be expensive for a small 

provider to implement, requiring legal 

and professional expertise.’’ 

239. We find that WISPA’s concerns 

are misguided. Because requests for 

advisory opinions will be entirely 

voluntary, we disagree with the 

contention that their use would force 

broadband providers to seek permission 

before implementing new policies or 

technologies and thereby stifle 

innovation. In addition, we agree with 

other commenters that advisory 

opinions would provide more, not less, 

certainty regarding the legality of 

proposed business practices. 

(ii) Enforcement Advisories 

240. We conclude that the periodic 

publication of enforcement advisories 

will advance the Commission’s goal of 

promoting legal certainty regarding the 

open Internet rules. In the 2014 Open 

Internet NPRM, we inquired whether 

the Commission should issue guidance 

in the form of enforcement advisories 

that provide insight into the application 

of Commission rules. Enforcement 

advisories are a tool that the 

Commission has used in numerous 

contexts, including the current open 

Internet rules. We asked whether 

continued use of such advisories would 

be helpful where issues of potential 

general application come to the 

Commission’s attention, and whether 

these advisories should be considered 

binding policy of the Commission or 

merely a recitation of staff views. 

241. Numerous commenters maintain 

that the Commission should continue to 

use enforcement advisories to offer 

clarity, guidance, and predictability 

concerning the open Internet rules. We 

agree. Enforcement advisories do not 

create new policies, but rather are 

recitations and reminders of existing 

legal standards and the Commission’s 

current enforcement intentions. (We 

disagree with the contention that public 

notice and comment should be a 

prerequisite for the Commission to issue 

an enforcement advisory. The 

Commission uses its rulemaking 

procedures when we are adopting rule 

changes that require notice and 

comment. Conversely, enforcement 

advisories are used to remind parties of 

existing legal standards.) We see no 

need to deviate from our current 

practice of issuing such advisories to 

periodically remind parties about legal 

standards regarding the open Internet 

rules. 

b. Flexibility 

(i) Means of Enforcement and General 

Enforcement Mechanisms 

242. We will preserve the 

Commission’s existing avenues for 

enforcement of open Internet rules— 

self-initiated investigation by the 

Enforcement Bureau, informal 

complaints, and formal complaints. 

Commenters agree with the value of 

retaining these three main mechanisms 

for commencing enforcement of 

potential open Internet violations, as 

this combination ensures multiple entry 

points to the Commission’s processes 

and gives both complainants and the 

Commission enforcement flexibility. 

243. In addition, the Commission will 

continue to honor requests for informal 

complaints to remain anonymous, and 

will also continue to maintain flexible 

channels for reporting suspected 

violations, like confidential calls to the 

Enforcement Bureau. Although some 

commenters raise concerns about 

anonymous complaint filings, others 

stress the importance of having the 

option to request anonymity when filing 

an informal complaint. We note, 

however, that complainants who are not 

anonymous frequently have better 

success getting their concerns addressed 

because the service provider can then 

troubleshoot their specific concerns. 

244. We also adopt our tentative 

conclusion in the 2014 Open Internet 

NPRM that enforcement of the 

transparency rule should proceed under 

the same dispute mechanisms that 

apply to other rules contained in this 

Order. We believe that providing both 

complainants and the Commission with 

flexibility to address violations of the 

transparency rule will continue to be 

important and that the best means to 

ensure compliance with both the 

transparency rule and the other rules we 

adopt today is to apply a uniform and 

consistent enforcement approach. 

245. Finally, we conclude that 

violations of the open Internet rules will 

be subject to any and all penalties 

authorized under the Communications 

Act and rules, (Section 706 was enacted 

as part of the 1996 Telecommunications 

Act, and it is therefore subject to any 

and all penalties under the Act and our 

rules. See Verizon, 740 F.3d at 650 

(‘‘Congress expressly directed that the 

1996 Act . . . be inserted into the 

Communications Act of 1934.’’) (quoting 

AT&T Corp. v. Iowa Utilities Board, 525 

U.S. 366, 377 (1999)).) including but not 

limited to admonishments, citations, 

notices of violation, notices of apparent 


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liability, monetary forfeitures and 

refunds, cease and desist orders, 

revocations, and referrals for criminal 

prosecution. Moreover, negotiated 

Consent Decrees can contain damages, 

restitution, compliance requirements, 

attorneys’ fees, declaratory relief, and 

equitable remedies like injunctions, 

equitable rescissions, reformations, and 

specific performance. 

(ii) Case-by-Case Analysis 

246. The 2014 Open Internet NPRM 

emphasized that the process for 

providing and promoting an open 

Internet must be flexible enough to 

accommodate the ongoing evolution of 

Internet technology. We therefore 

tentatively concluded that the 

Commission should continue to use a 

case-by-case approach, taking into 

account the totality of the 

circumstances, in considering alleged 

violations of the open Internet rules. 

247. We affirm our proposal to 

continue to analyze open Internet 

complaints on a case-by-case basis. (We 

reject the suggestion that the 

Commission promulgate additional 

rules of conduct because it is unrealistic 

to expect that in this varied and rapidly 

evolving technological environment the 

agency will be able to anticipate the 

specific conduct that will give rise to 

future disputes.) We agree with 

commenters that flexible rules, 

administered through case-by-case 

analysis, will enable us to pursue 

meaningful enforcement, consider 

consumers’ individual concerns, and 

account for rapidly changing 

technology. 

(iii) Fact-Finding Processes 

248. In the 2014 Open Internet NPRM, 

we sought comment about how to most 

effectively structure a flexible fact 

finding process in analyzing open 

Internet complaints. We asked what 

level of evidence should be required in 

order to bring a claim. With regard to 

formal complaint proceedings, we also 

asked what showing should be required 

for the burden of production to shift 

from the party bringing the claim to the 

defendant, as well as whether parties 

could seek expedited treatment. 

249. Informal Complaints. Our 

current rules permitting the filing of 

informal complaints include a simple 

and straightforward evidentiary 

standard. Under section 1.41 of our 

rules, ‘‘[r]equests should set forth 

clearly and concisely the facts relied 

upon, the relief sought, the statutory 

and/or regulatory provisions (if any) 

pursuant to which the request is filed 

and under which relief is sought, and 

the interest of the person submitting the 

request.’’ Although our rules do not 

establish any specific pleading 

requirements for informal complaints, 

parties filing them should attempt to 

provide the Commission with sufficient 

information and specific facts that, if 

proven true, would constitute a 

violation of the open Internet rules. 

250. We find that our existing 

informal complaint rule offers an 

accessible and effective mechanism for 

parties—including consumers and small 

businesses with limited resources—to 

report possible noncompliance with our 

open Internet rules without being 

subject to burdensome evidentiary or 

pleading requirements. We conclude 

that there is no basis in the record for 

modifying the existing standard and 

decline to do so. 

251. Formal Complaints. Our current 

open Internet formal complaint rules 

provide broad flexibility to adapt to the 

myriad potential factual situations that 

might arise. For example, as noted in 

the 2010 Open Internet Order, some 

cases can be resolved based on the 

pleadings if the complaint and answer 

contain sufficient factual material to 

decide the case. A simple case could 

thus be adjudicated in an efficient, 

streamlined manner. For more complex 

matters, the existing rules give the 

Commission discretion to require other 

procedures, including discovery, 

briefing, a status conference, oral 

argument, an evidentiary hearing, or 

referral to an administrative law judge 

(ALJ). Similarly, the rules provide the 

Commission discretion to grant 

temporary relief where appropriate. 

252. In addition, our open Internet 

formal complaint process already 

contemplates burden shifting. (As we 

noted in the 2010 Open Internet Order, 

our current processes permit the 

Commission to shift the burden of 

production where appropriate.) 

Generally, complainants bear the 

burden of proof and must demonstrate 

by a preponderance of the evidence that 

an alleged violation has occurred. A 

complainant must plead with specificity 

the basis of its claim and provide facts 

and documentation, when possible, to 

establish a prima facie rule violation. 

Defendants must answer each claim 

with particularity and furnish facts, 

supported by documentation or 

affidavit, demonstrating that the 

challenged practice complies with our 

rules. Defendants do not have the option 

of merely pointing out that the 

complainant has failed to meet his or 

her burden; they must show that they 

are in compliance with the rules. The 

complainant then has an opportunity to 

respond to the defendant’s submission. 

We retain our authority to shift the 

burden of production when, for 

example, the evidence necessary to 

assess the alleged unlawful practice is 

predominately in the possession of the 

broadband provider. If a complaining 

party believes the burden of production 

should shift, it should explain why in 

the complaint. Complainants also must 

clearly state the relief requested. We 

conclude that we should retain our 

existing open Internet procedural rules 

and that all formal complaints that 

relate to open Internet disputes, 

including Internet traffic exchange 

disputes, will be subject to those rules. 

Although comparable to the section 208 

formal complaint rules, the open 

Internet rules are less burdensome on 

complainants, who in this context are 

likely to be consumers or small edge 

providers with limited resources. (The 

section 208 rules, for example, require 

complainants to submit information 

designations, proposed findings of fact 

and conclusions of law, and affidavits 

demonstrating the basis for 

complainant’s belief for unsupported 

allegations and why complainant could 

not ascertain facts from any source. See, 

e.g., 47 CFR 1.721(a) (5), (6), (10). The 

open Internet formal complaint rules do 

not contain similar requirements.) 

Moreover, as described above, the open 

Internet procedural rules allow the 

Commission broader flexibility in 

tailoring proceedings to fit particular 

cases. (For example, under the open 

Internet rules, the Commission may 

order an evidentiary hearing before an 

administrative law judge (ALJ) or 

Commission staff. See 47 CFR 8.14(e)(1), 

(g). The section 208 rules contain no 

such provision. In addition, unlike the 

section 208 rules, the open Internet 

rules do not contain numerical limits on 

discovery requests. Compare id. section 

8.14(f) with id. section 1.729(a).) 

253. Several commenters stress the 

need for speedy resolution of 

complaints, given the rapid pace of 

Internet commerce and the potential 

consumer harms and market chilling 

effects deriving from slow resolution. 

While we share these concerns, we 

decline to adopt fixed, short deadlines 

for resolving formal complaints but 

pledge to move expeditiously. As noted 

in the 2010 Open Internet Order, the 

Commission may shorten deadlines or 

otherwise revise procedures to expedite 

the adjudication of complaints. 

Additionally, the Commission will 

determine, on the basis of the evidence 

before it, whether temporary relief 

should be afforded any party pending 

final resolution of a complaint and, if 

so, the nature of any such temporary 

relief. (The Supreme Court has affirmed 


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the Commission’s authority to impose 

interim injunctive relief pursuant to 

section 4(i) of the Act.) As noted above, 

some open Internet cases may be 

straightforward and suitable for decision 

in a 60 to 90 day timeframe. Other cases 

may be more factually and 

technologically complex, requiring more 

time for the parties to pursue discovery 

and build an adequate record, and 

sufficient time for the Commission to 

make a reasoned decision. Therefore, we 

find that the existing process—allowing 

parties to request expedited treatment— 

best fits the needs of potential open 

Internet formal complaints. 

c. Effective Access To Dispute 

Resolution 

254. In this section, we adopt the 

proposal from the 2014 Open Internet 

NPRM to establish an ombudsperson to 

assist consumers, businesses, and 

organizations with open Internet 

complaints and questions by ensuring 

these parties have effective access to the 

Commission’s processes that protect 

their interests. The record filed supports 

our conclusion that these parties would 

benefit from having an ombudsperson as 

a point of contact within the 

Commission for questions and 

complaints. 

255. Comments in support of the 

establishment of an ombudsperson 

clearly demonstrate the range of groups 

a dedicated ombudsperson can serve. 

For example, the American Association 

of People with Disabilities expressed 

particular interest in the potential of the 

ombudsperson to monitor concerns 

regarding accessibility and the open 

Internet. In addition, the comments of 

Higher Education Libraries asked that 

libraries be amongst the groups served 

by the ombudsperson and those of the 

Alaska Rural Coalition expressed 

interest in the ombudsperson also being 

accessible to small carriers with 

concerns. In contrast, some commenters 

expressed concerns about the creation of 

a dedicated ombudsperson. However, as 

described below, the ombudsperson will 

work as a point of contact and a source 

of assistance as needed, not as an 

advocate or as an officer who must be 

approached for approval, addressing 

many of these concerns. 

256. The Open Internet 

Ombudsperson will serve as a point of 

contact to provide assistance to 

individuals and organizations with 

questions or complaints regarding the 

open Internet to ensure that small and 

often unrepresented groups reach the 

appropriate bureaus and offices to 

address specific issues of concern. For 

example, the ombudsperson will be able 

to provide initial assistance with the 

Commission’s dispute resolution 

procedures by directing such parties to 

the appropriate templates for formal and 

informal complaints. We expect the 

ombudsperson will assist interested 

parties in less direct but equally 

important ways. These could include 

conducting trend analysis of open 

Internet complaints and, more broadly, 

market conditions, that could be 

summarized in reports to the 

Commission regarding how the market 

is functioning for various stakeholders. 

The ombudsperson may investigate and 

bring attention to open Internet 

concerns, and refer matters to the 

Enforcement Bureau for potential 

further investigation. The 

ombudsperson will be housed in the 

Consumer & Governmental Affairs 

Bureau, which will remain the initial 

informal complaint intake point, and 

will coordinate with other bureaus and 

offices, as appropriate, to facilitate 

review of inquiries and complaints 

regarding broadband services. 

3. Complaint Processes and Forms of 

Dispute Resolution 

a. Complaint Filing Procedures 

257. In the 2014 Open Internet NPRM, 

we sought comment on how open 

Internet complaints should be received, 

processed, and enforced. We asked if 

there were ways to improve access to 

our existing informal and formal 

complaint processes, especially for 

consumers, small businesses, and other 

entities with limited resources and 

knowledge of how our complaint 

processes work. We also asked whether 

the current enforcement and dispute 

resolution tools at the Commission’s 

disposal are sufficient for resolving 

violations of open Internet rules. 

258. Informal Complaints. First, we 

will implement processes to make it 

easier to lodge informal open Internet 

complaints, including a new, more 

intuitive online complaint interface. 

The Commission recently launched a 

new Consumer Help Center, which 

provides a user-friendly, streamlined 

means to access educational materials 

on consumer issues and to file 

complaints. Consumers who seek to file 

an open Internet complaint should visit 

the Consumer Help Center portal and 

click the Internet icon for the materials 

or the online intake system for 

complaints. The complaint intake 

system is designed to guide the 

consumer efficiently through the 

questions that need to be answered in 

order to file a complaint. The Consumer 

Help Center will make available 

aggregate data about complaints 

received, including those pertaining to 

open Internet issues. Some data is 

currently available, with additional and 

more granular data to be provided over 

time. We believe these efforts will 

improve access to the Commission’s 

open Internet complaint processes. 

259. Formal Complaints. With respect 

to formal complaints, we amend the 

Commission’s Part 8 open Internet rules 

to require electronic filing of all 

pleadings in open Internet formal 

complaint proceedings. Currently, 

parties to such proceedings must file 

hard copies of pleadings with the Office 

of the Secretary. This process is timeconsuming for the parties and makes it 

difficult for the public to track case 

developments. Although members of the 

public may obtain copies of the 

pleadings from the Commission’s 

Reference Information Center, there is 

no way to search for or view pleadings 

electronically. Today’s actions 

modernize and reform these existing 

procedures. (The rule changes described 

in this section do not apply to open 

Internet informal complaints. 

Consumers will continue to have the 

ability to file informal complaints 

electronically with the Consumer & 

Governmental Affairs Bureau. The form 

for filing an informal complaint is 

available at https://

consumercomplaints.fcc.gov/hc/en-us.) 

260. In 2011, the Commission 

released a Report and Order revising 

part 1 and part 0 of its rules. One aspect 

of the Part 1 Order was a requirement 

that docketing and electronic filing 

begin to be utilized in proceedings 

involving ‘‘[n]ewly filed section 208 

formal common carrier complaints and 

newly filed section 224 pole attachment 

complaints before the Enforcement 

Bureau.’’ On November 12, 2014, the 

Commission released an Order that 

amended its procedural rules governing 

formal complaints under section 208 

and pole attachment complaints under 

section 224 to require electronic filing. 

We established within ECFS a ‘‘Submit 

a Non-Docketed Filing’’ module where 

all such complaints must be filed 

because staff must review a complaint 

for conformance with the Commission’s 

rules before the matter can receive its 

own unique ECFS proceeding number. 

261. We now extend those rule 

changes to open Internet formal 

complaints. (We hereby amend the 

caption for the ECFS docket to ‘‘section 

208 and 224 and Open Internet 

Complaint Inbox, Restricted 

Proceedings.’’ We also amend rule 8.16, 

which governs confidentiality of 

proprietary information, to conform to 

the changes we made regarding 

confidentiality in the section 208 and 

section 224 complaint rules. See infra 


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Appendix (detailing revisions to 47 CFR 

8.16).) When filing such a complaint, as 

of the effective date of this Order, the 

complainant will be required to select 

‘‘Open Internet Complaint: Restricted 

Proceeding’’ from the ‘‘Submit a NonDocketed Filing’’ module in ECFS. The 

filing must include the complaint, as 

well as all attachments to the complaint. 

(All electronic filings must be machinereadable, and files containing text must 

be formatted to allow electronic 

searching and/or copying (e.g., in 

Microsoft Word or PDF format). Nontext filings (e.g., Microsoft Excel) must 

be submitted in native format. Be 

certain that filings submitted in .pdf or 

comparable format are not locked or 

password-protected. If those restrictions 

are present (e.g., a document is locked), 

the ECFS system may reject the filing, 

and a party will need to resubmit its 

document within the filing deadline. 

The Commission will consider granting 

waivers to this electronic filing 

requirement only in exceptional 

circumstances.) When using ECFS to 

initiate new proceedings, a complainant 

no longer will have to file its complaint 

with the Office of the Secretary unless 

the complaint includes confidential 

information. 

262. Enforcement Bureau staff will 

review new open Internet formal 

complaints for conformance with 

procedural rules (including fee 

payment). As of the effective date of this 

Order, complainants no longer will 

submit a hard copy of the complaint 

with the fee payment as described in 

rule 1.1106. Instead, complainants must 

first transmit the complaint filing fee to 

the designated payment center and then 

file the complaint electronically using 

ECFS. (Complainants may transmit the 

complaint filing fee via check, wire 

transfer, or electronically using the 

Commission’s Fee Filer System (Fee 

Filer).) 

263. Assuming a complaint satisfies 

this initial procedural review, 

Enforcement Bureau staff then will 

assign an EB file number to the 

complaint (EB Identification Number), 

give the complaint its own case-specific 

ECFS proceeding number, and enter 

both the EB Identification Number and 

ECFS proceeding number into ECFS. At 

that time, Enforcement Bureau staff will 

post a Notice of Complaint Letter in the 

case-specific ECFS proceeding and 

transmit the letter (and the complaint) 

via email to the defendant. On the other 

hand, if a filed complaint does not 

comply with the Commission’s 

procedural rules, Enforcement Bureau 

staff will serve a rejection letter on the 

complainant and post the rejection letter 

and related correspondence in ECFS. 

Importantly, the rejection letter will not 

preclude the complainant from curing 

the procedural infirmities and refiling 

the complaint. 

264. As of the effective date of this 

Order, all pleadings, attachments, 

exhibits, and other documents in open 

Internet formal complaint proceedings 

must be filed using ECFS, both in cases 

where the complaint was initially filed 

in ECFS and in pending cases filed 

under the old rules. With respect to 

complaints filed prior to the effective 

date of this Order, Enforcement Bureau 

staff will assign an individual ECFS 

proceeding number to each existing 

proceeding and notify existing parties 

by email of this new ECFS number. This 

ECFS proceeding number will be in 

addition to the previously-assigned 

number. The first step in using ECFS is 

to input the individual case’s ECFS 

proceeding number or EB Identification 

Number. The new rules allow parties to 

serve post-complaint submissions on 

opposing parties via email without 

following up by regular U.S. mail. 

Parties must provide hard copies of 

submissions to staff in the Market 

Disputes Resolution Division of the 

Enforcement Bureau upon request. 

265. Consistent with existing 

Commission electronic filing guidelines, 

any party asserting that materials filed 

in an open Internet formal complaint 

proceeding are proprietary must file 

with the Commission, using ECFS, a 

public version of the materials with any 

proprietary information redacted. The 

party also must file with the Secretary’s 

Office an unredacted hard copy version 

that contains the proprietary 

information and clearly marks each 

page, or portion thereof, using bolded 

brackets, highlighting, or other distinct 

markings that identify the sections of 

the filing for which a proprietary 

designation is claimed. (Filers must 

ensure that proprietary information has 

been properly redacted and thus is not 

viewable. If a filer inadvertently 

discloses proprietary information, the 

Commission will not be responsible for 

that disclosure.) Each page of the 

redacted and unredacted versions must 

be clearly identified as the ‘‘Public 

Version’’ or the ‘‘Confidential Version,’’ 

respectively. Both versions must be 

served on the same day. 

b. Alternative Dispute Resolution 

266. The Commission sought 

comment on various modes of 

alternative dispute resolution for 

resolving open Internet disputes. 

Currently, parties with disputes before 

the Commission are free to voluntarily 

engage in mediation, which is offered by 

the Market Disputes Resolution Division 

(MDRD) at no charge to the parties. This 

process has worked well and has led to 

the effective resolution of numerous 

complaints. We will take steps to 

improve awareness of this approach. In 

the 2014 Open Internet NPRM, we asked 

whether other approaches, such as 

arbitration, should be considered, in 

order to ensure access to dispute 

resolution by smaller edge providers 

and other entities without resources to 

engage in the Commission’s formal 

complaint process. 

267. We decline to adopt arbitration 

procedures or to mandate arbitration for 

parties to open Internet complaint 

proceedings. Under the rules adopted 

today, parties are still free to engage in 

mediation and outside arbitration to 

settle their open Internet disputes, but 

alternative dispute resolution will not 

be required. (As a general matter, the 

Commission lacks the ability to 

subdelegate its authority over these 

disputes to a private entity, like a thirdparty arbitrator, see U.S. Telecom Ass’n 

v. FCC, 359 F.3d 554, 566 (D.C. Cir. 

2004) (‘‘[W]hile federal agency officials 

may subdelegate their decision-making 

authority to subordinates absent 

evidence of contrary congressional 

intent, they may not subdelegate to 

outside entities–private or sovereign– 

absent affirmative evidence of authority 

to do so’’), and ‘‘may not require any 

person to consent to arbitration as a 

condition of entering into a contract or 

obtaining a benefit.’’ As noted in the 

2014 Open Internet NPRM, however, 

mandatory third-party arbitration may 

be allowed so long as it is subject to de 

novo review by the Commission.) 

Commenters generally do not favor 

arbitration in this context and 

recommend that the Commission not 

adopt it as the default method for 

resolving complaints. Commenters 

suggest that mandatory arbitration, in 

particular, may more frequently benefit 

the party with more resources and more 

understanding of dispute procedure, 

and therefore should not be adopted. 

We agree with these concerns and 

conclude that adoption of arbitration 

rules is not necessary or appropriate in 

this context. 

c. Multistakeholder Processes and 

Technical Advisory Groups 

268. In the 2014 Open Internet NPRM, 

the Commission sought comment on 

whether enforcement of open Internet 

rules—including resolution of open 

Internet disputes—could be supported 

by multistakeholder processes that 

enable the development of independent 

standards to guide the Commission in 

compliance determinations. The 

Commission also asked whether it 


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should incorporate the expertise of 

technical advisory groups into these 

determinations. 

269. We conclude that incorporating 

groups with technical expertise into our 

consideration of formal complaints has 

the potential to inform the 

Commission’s judgment and improve 

our understanding of complex and 

rapidly evolving technical issues. By 

requiring electronic filing of all 

pleadings in open Internet formal 

complaint proceedings, we will enable 

interested parties to more easily track 

developments in the proceedings and 

participate as appropriate. Although 

formal complaint proceedings are 

generally restricted for purposes of the 

Commission’s ex parte rules, interested 

parties may seek permission to file an 

amicus brief. The Commission 

‘‘consider[s] on a case-by-case basis 

motions by non-parties wishing to 

submit amicus-type filings addressing 

the legal issues raised in [a] 

proceeding,’’ and grants such requests 

when warranted. (If a party to the 

proceeding is a member of or is 

otherwise represented by an entity that 

requests leave to file an amicus brief, 

the entity must disclose that affiliation 

in its request.) Thus, for example, the 

Commission granted a motion for leave 

to file an amicus brief in a section 224 

pole attachment complaint proceeding 

‘‘in light of the broad policy issues at 

stake. 

270. To further advance the values 

underlying multistakeholder 

processes—inclusivity, transparency, 

and expertise—we also amend our Part 

8 formal complaint rules by delegating 

authority to the Enforcement Bureau, in 

its discretion, to request a written 

opinion from an outside technical 

organization. As reviewing courts have 

established, ‘‘[a] federal agency may 

turn to an outside entity for advice and 

policy recommendations, provided the 

agency makes the final decisions itself.’’ 

271. In this instance, given the 

potential complexity of the issues in 

open Internet formal complaint 

proceedings, it may be particularly 

useful to obtain objective advice from 

industry standard-setting bodies or 

other similar organizations. Providing 

Commission staff with this flexibility 

also will enable more informed 

determinations of technical Internet 

issues that reflect current industry 

standards and permit staff to keep pace 

with rapidly changing technology. 

(Whenever possible, the Enforcement 

Bureau should request advisory 

opinions from expert organizations 

whose members do not include any of 

the parties to the proceeding. If no such 

organization exists, the Enforcement 

Bureau may refer issues to an expert 

organization with instructions that 

representatives of the parties to the 

complaint proceeding may not 

participate in the organization’s 

consideration of the issues referred or 

the drafting of its advisory opinion.) 

Expert organizations will not be 

required to respond to requests from the 

Enforcement Bureau for opinions; 

however, any organization that elects to 

do so must provide the opinion within 

30 days of the request—unless 

otherwise specified by the staff—in 

order to facilitate timely dispute 

resolution. We find that this approach 

will allow for the inclusivity the 

multistakeholder process offers, while 

also providing the predictability and 

legal certainty of the Commission’s 

formal dispute resolution process. 

272. For informal complaints and 

investigations, the Enforcement 

Bureau’s efforts will continue to be 

informed by resolutions of formal 

complaints, and will also continue to be 

informed by the standards developed by 

existing multistakeholder, industry, and 

consumer groups. The Enforcement 

Bureau will also work with interested 

parties on an informal basis to identify 

ways to promote compliance with the 

open Internet rules. 

F. Legal Authority 

273. We ground the open Internet 

rules we adopt today in multiple 

sources of legal authority—section 706, 

Title II, and Title III of the 

Communications Act. We marshal all of 

these sources of authority toward a 

common statutorily-supported goal: To 

protect and promote Internet openness 

as platform for competition, free 

expression and innovation; a driver of 

economic growth; and an engine of the 

virtuous cycle of broadband 

deployment. 

274. We therefore invoke multiple, 

complementary sources of legal 

authority. As a number of parties point 

out, our authority under section 706 is 

not mutually exclusive with our 

authority under Titles II and III of the 

Act. Rather, we read our statute to 

provide several, alternative sources of 

authority that work in concert toward 

common ends. As described below, 

under section 706, the Commission has 

the authority to adopt these open 

Internet rules to encourage and 

accelerate the deployment of broadband 

to all Americans. In the Declaratory 

Ruling and Order below, we find, based 

on the current factual record, that BIAS 

is a telecommunications service subject 

to Title II and exercise our forbearance 

authority to establish a ‘‘light-touch’’ 

regulatory regime, which includes the 

application of sections 201 and 202. 

This finding both removes the common 

carrier limitation from the exercise of 

our affirmative section 706 authority 

and also allows us to exercise authority 

directly under sections 201 and 202 of 

the Communications Act in adopting 

today’s rules. Finally, these rules are 

also supported by our Title III authority 

to protect the public interest through 

spectrum licensing. In this section, we 

discuss the basis and scope of each of 

these sources of authority and then 

explain their application to the open 

Internet rules we adopt today. 

1. Section 706 Provides Affirmative 

Legal Authority for Our Open Internet 

Rules 

275. Section 706 affords the 

Commission affirmative legal authority 

to adopt all of today’s open Internet 

rules. Section 706(a) directs the 

Commission to take actions that ‘‘shall 

encourage the deployment on a 

reasonable and timely basis of advanced 

telecommunications capability to all 

Americans.’’ To do so, the Commission 

may utilize ‘‘in a manner consistent 

with the public interest, convenience, 

and necessity, price cap regulation, 

regulatory forbearance, measures that 

promote competition in the local 

telecommunications market, or other 

regulating methods that remove barriers 

to infrastructure investment.’’ Section 

706(b), in turn, directs that the 

Commission ‘‘shall take immediate 

action to accelerate deployment of such 

capability by removing barriers to 

infrastructure investment and by 

promoting competition in the 

telecommunications market,’’ if it finds 

after inquiry that advanced 

telecommunications capability is not 

being deployed to all Americans in a 

reasonable and timely fashion. 

‘‘Advanced telecommunications 

capability’’ is defined as ‘‘high-speed, 

switched, broadband 

telecommunications capability that 

enables users to originate and receive 

high-quality voice, data, graphics, and 

video telecommunications using any 

technology.’’ Sections 706(a) and (b) 

each provide an express, affirmative 

grant of authority to the Commission 

and the rules we adopt today fall well 

within their scope. 

276. Section 706(a) and (b) Are 

Express Grants of Authority. In Verizon, 

the D.C. Circuit squarely upheld as 

reasonable the Commission’s reading of 

section 706(a) as an affirmative grant of 

authority. (Verizon, 740 F.3d at 637 

(‘‘The question, then, is this: Does the 

Commission’s current understanding of 

section 706(a) as a grant of regulatory 

authority represent a reasonable 


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interpretation of an ambiguous statute? 

We believe it does.’’) A few commenters 

argue that the court incorrectly 

concluded that section 706(a) and (b) 

are express grants of authority. For the 

reasons discussed in the text, by the 

Commission in the 2010 Open Internet 

Order, and the court in Verizon and In 

re FCC, we disagree.) Finding that 

provision ambiguous, the court upheld 

the Commission’s interpretation as 

consistent with the statutory text, (As 

the Verizon court explained, for 

example, ‘‘section 706(a)’s reference to 

state commissions does not foreclose 

such a reading’’ of section 706(a) as an 

express grant of authority. Id. at 638. 

Nor, as one of the dissents suggests, (see 

Pai Dissent at 55), is the statute’s 

reference to ‘‘[s]tate commission’’ 

rendered meaningless by the 

Commission’s reaffirmation that BIAS is 

an interstate service for regulatory 

purposes. The Commission’s 

interpretation does not preclude all state 

commission action in this area, just that 

which is inconsistent with the federal 

regulatory regime we adopt today.) 

legislative history, and the 

Commission’s lengthy history of 

regulating Internet access. 

277. Separately addressing section 

706(b), the D.C. Circuit held, citing 

similar reasons, that the ‘‘Commission 

has reasonably interpreted section 

706(b) to empower it to take steps to 

accelerate broadband deployment if and 

when it determines that such 

deployment is not ‘‘reasonable and 

timely.’’ The 10th Circuit, in upholding 

the Commission’s reform of our 

universal service and inter-carrier 

compensation regulatory regime, 

likewise concluded that the 

Commission reasonably construed 

section 706(b) as an additional source of 

authority for those regulations. 

278. In January, the Commission 

adopted the 2015 Broadband Progress 

Report, which determined that 

advanced telecommunications 

capability is not being deployed in a 

reasonable and timely manner to all 

Americans. That determination 

triggered our authority under section 

706(b) to take immediate action, 

including the adoption of today’s open 

Internet rules, to accelerate broadband 

deployment to all Americans. 

279. We interpret sections 706(a) and 

706(b) as independent, complementary 

sources of affirmative Commission 

authority for today’s rules. Our 

interpretation of section 706(a) as a 

grant of express authority is in no way 

dependent upon our findings in the 

section 706(b) inquiry. Thus, even if the 

Commission’s inquiry were to have 

resulted in a positive conclusion such 

that our section 706(b) authority were 

not triggered this would not eliminate 

the Commission’s authority to take 

actions to encourage broadband 

deployment under section 706(a). (The 

Commission takes such measures 

precisely to achieve section 706(b)’s 

goal of accelerating deployment. That 

they may succeed in achieving that goal 

so as to contribute to a positive section 

706(b) finding does not subsequently 

render them unnecessary or 

unauthorized without any further 

Commission process. Even if that were 

not the case, independent section 706(a) 

authority would remain. We mention, 

however, two legal requirements that 

appear relevant. First, section 408 of the 

Act mandates that ‘‘all’’ FCC orders 

(other than orders for the payment of 

money) ‘‘shall continue in force for the 

period of time specified in the Order or 

until the Commission or a court of 

competent jurisdiction issues a 

superseding Order.’’ 47 U.S.C. 408. 

Second, the Commission has a 

‘‘continuing obligation to practice 

reasoned decisionmaking’’ that includes 

revisiting prior decisions to the extent 

warranted. Aeronautical Radio v. FCC, 

928 F.2d 428 (D.C. Cir. 1991). We are 

aware of no reason why these 

requirements would not apply in this 

context.) 

280. We reject arguments that we lack 

rulemaking authority to implement 

section 706 of the 1996 Act. In Verizon, 

the D.C. Circuit suggested that section 

706 was part of the Communications 

Act of 1934. Under such a reading, the 

Commission would have all its standard 

rulemaking authority under sections 

4(i), 201(b) and 303(r) to adopt rules 

implementing that provision. (47 U.S.C. 

154(i) (‘‘The Commission may . . . 

make such rules and regulations . . . 

not inconsistent with this chapter, as 

may be necessary in the execution of its 

functions.’’); 47 U.S.C. 201(b) (‘‘The 

Commission may prescribe such rules 

and regulations as may be necessary in 

the public interest to carry out the 

provisions of this chapter.’’); 47 U.S.C. 

303(r) (‘‘Except as otherwise provided in 

this chapter, the Commission from time 

to time, as public convenience, interest, 

or necessity requires, shall . . . [m]ake 

such rules and regulations and prescribe 

such restrictions and conditions, not 

inconsistent with law, as may be 

necessary to carry out the provisions of 

this chapter’’). Even if this were not the 

case, by its terms our section 4(i) 

rulemaking authority is not limited just 

to the adoption of rules pursuant to 

substantive jurisdiction under the 

Communications Act, and the Verizon 

court cited as reasonable the 

Commission’s view that Congress, in 

placing upon the Commission the 

obligation to carry out the purposes of 

section 706, ‘‘necessarily invested the 

Commission with the statutory authority 

to carry out those acts.’’ 

281. The Open Internet Rules Fall 

Well Within the Scope of Our section 

706 Authority. In Verizon, the D.C. 

Circuit agreed with the Commission that 

while authority under section 706 may 

be broad, it is not unbounded. Both the 

Commission and the court have 

articulated its limits. First, section 706 

regulations must be within the scope of 

the Commission’s subject matter 

jurisdiction over ‘‘interstate and foreign 

communications by wire and radio.’’ 

(Some have read this to require that 

regulations under section 706 must be 

ancillary to existing Commission 

authority in Title II, III or VI of the Act. 

We disagree. To be sure, with the 

Commission’s exercise of both section 

706 and ancillary authority, regulations 

must be within the Commission’s 

subject matter jurisdiction. Indeed, this 

is the first prong of the test for ancillary 

jurisdiction. American Library Ass’n v. 

FCC, 406 F.3d 689, 703–04 (D.C. Cir. 

2005). But we do not read the Verizon 

decision as applying the second prong— 

which requires that the regulation be 

sufficiently linked to another provision 

of the Act—to our exercise of section 

706 authority. Section 706 ‘‘does not 

limit the Commission to using other 

regulatory authority already at its 

disposal, but instead grants it the power 

necessary to fulfill the statute’s 

mandate.’’ See Verizon, 740 F.3d at 641 

(citing 2010 Open Internet Order, 25 

FCC Rcd at 17972, para. 123)) And 

second, any such regulations must be 

designed to achieve the purpose of 

section 706(a)—to ‘‘encourage the 

deployment on a reasonable and timely 

basis of advanced telecommunications 

capability to all Americans.’’ 

282. In Verizon, the court firmly 

concluded that the Commission’s 2010 

Open Internet Order regulations fell 

within the scope of section 706. It 

explained that the rules ‘‘not only apply 

directly to broadband providers, the 

precise entities to which section 706 

authority to encourage broadband 

deployment presumably extends, but 

also seek to promote the very goal that 

Congress explicitly sought to promote.’’ 

Further, the court credited ‘‘the 

Commission’s prediction that the Open 

Internet Order regulations will 

encourage broadband deployment.’’ The 

same is true of the open Internet rules 

we adopt today. Our regulations again 

only apply to last-mile providers of 

broadband services—services that are 

not only within our subject matter 


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jurisdiction, but also expressly within 

the terms of section 706. (In response to 

parties expressing concerns that section 

706 could be read to impose regulations 

on edge providers or others in the 

Internet ecosystem, we emphasize that 

today’s rules apply only to last-mile 

broadband providers. We reject calls 

from other commenters to exercise our 

section 706 authority to adopt open 

Internet regulations for edge providers. 

Today’s rules are specifically designed 

to address broadband providers’ 

incentives and ability to erect barriers 

that harm the virtuous cycle. We see no 

basis for applying these rules to any 

other providers.) And, again, each of our 

rules is designed to remove barriers in 

order to achieve the express purposes of 

section 706. We also find that our rules 

will provide additional benefits by 

promoting competition in 

telecommunications markets, for 

example, by fostering competitive 

provision of VoIP and video services 

and informing consumers’ choices. 

2. Authority for the Open Internet Rules 

Under Title II with Forbearance 

283. In light of our Declaratory Ruling 

below, the rules we adopt today are also 

supported by our legal authority under 

Title II to regulate telecommunications 

services. For the reasons set forth below, 

we have found that BIAS is a 

telecommunications service and, for 

mobile broadband, commercial mobile 

services or its functional equivalent. 

While we forbear from applying many of 

the Title II regulations to this service, 

we have applied sections 201, 202, and 

208 (along with related enforcement 

authorities). These provisions provide 

an alternative source of legal authority 

for today’s rules. 

284. Section 201(a) places a duty on 

common carriers to furnish 

communications services subject to 

Title II ‘‘upon reasonable request’’ and 

‘‘establish physical connections with 

other carriers’’ where the Commission 

finds it to be in the public interest. 

Section 201(b) provides that ‘‘[a]ll 

charges, practices, classifications, and 

regulations for and in connection with 

such communication service, shall be 

just and reasonable, and any such 

charge, practice, classification, or 

regulation that is unjust or unreasonable 

is declared to be unlawful.’’ It also gives 

the Commission the authority to 

‘‘prescribe such rules and regulations as 

may be necessary in the public interest 

to carry out the provisions of this 

chapter.’’ Section 202(a) makes it 

‘‘unlawful for any common carrier to 

make any unjust or unreasonable 

discrimination in charges, practices, 

classifications, regulations, facilities, or 

services for or in connection with like 

communication service, directly or 

indirectly, by any means or device, or to 

make or give any undue or unreasonable 

preference or advantage to any 

particular person, class of persons, or 

locality, or to subject any particular 

person, class of persons, or locality to 

any undue or unreasonable prejudice or 

disadvantage.’’ As described below, 

these provisions provide additional 

independent authority for the rules we 

adopt today. 

3. Title III Provides Additional 

Authority for Mobile Broadband 

Services 

285. With respect to mobile 

broadband Internet access services, 

today’s open Internet rules are further 

supported by our authority under Title 

III of the Act to protect the public 

interest through spectrum licensing. 

While this authority is not unbounded, 

we exercise it here in reliance upon 

particular Title III delegations of 

authority. 

286. Section 303(b) directs the 

Commission, consistent with the public 

interest, to ‘‘[p]rescribe the nature of the 

service to be rendered by each class of 

licensed stations and each station 

within any class.’’ Today’s conduct 

regulations do precisely this. They lay 

down rules about ‘‘the nature of the 

service to be rendered’’ by licensed 

entities providing mobile broadband 

Internet access service, making clear 

that this service may not be offered in 

ways that harm the virtuous cycle. 

Today’s rules specify the form this 

service must take for those who seek 

licenses to offer it. In providing such 

licensed service, broadband providers 

must adhere to the rules we adopt 

today. 

287. This authority is bolstered by at 

least two additional provisions. First, as 

the D.C. Circuit has explained, section 

303(r) supplements the Commission’s 

ability to carry out its mandates via 

rulemaking. Second, section 316 

authorizes the Commission to adopt 

new conditions on existing licenses if it 

determines that such action ‘‘will 

promote the public interest, 

convenience, and necessity.’’ (The 

Commission also has ample authority to 

impose conditions to serve the public 

interest in awarding licenses in the first 

instance. See 47 U.S.C. 309(a); 307(a).) 

Nor do today’s rules work any 

fundamental change to those licenses. 

Rather we understand our rules to be 

largely consistent with the current 

operation of the Internet and the current 

practices of mobile broadband service 

providers. 

4. Applying These Legal Authorities to 

Our Open Internet Rules 

288. Bright line rules. Applying these 

statutory sources of authority, we have 

ample legal bases on which to adopt the 

three bright-line rules against blocking, 

throttling, and paid prioritization. To 

begin, we have found that broadband 

providers have the incentive and ability 

to engage in such practices—which 

disrupt the unity of interests between 

end users and edge providers and thus 

threaten the virtuous cycle of broadband 

deployment. As the D.C. Circuit found 

with respect to the 2010 conduct rules, 

such broadband provider practices fall 

squarely within our section 706 

authority. The court struck down the 

2010 conduct rules after finding that the 

Commission failed to provide a legal 

justification that would take the rules 

out of the realm of impermissibly 

mandating common carriage, but did 

not find anything impermissible about 

the need for such rules to protect the 

virtuous cycle. Given our classification 

of broadband Internet access service as 

a telecommunications service, the 

court’s rationale for vacating our 2010 

conduct rules no longer applies and, for 

the reasons discussed above, we have 

legal justification to support our brightline rules under section 706. 

289. Our bright-line rules are also 

well grounded in our Title II authority. 

In Title II contexts, the Commission has 

made clear that blocking traffic 

generally is unjust and unreasonable 

under section 201. The Commission has 

likewise found it unjust and 

unreasonable for a carrier to refuse to 

allow non-harmful devices to attach to 

the network. And with respect to 

throttling, Commission precedent has 

likewise held that ‘‘no carriers . . . may 

block, choke, reduce or restrict traffic in 

any way.’’ We see no basis for departing 

from such precedents in the case of 

broadband Internet access services. As 

discussed above, the record here 

demonstrates that blocking and 

throttling broadband Internet access 

services harm consumers and edge 

providers, threaten the virtuous cycle, 

and deter broadband deployment. 

Consistent with our prior Title II 

precedents, we conclude that blocking 

and throttling of broadband Internet 

access services is an unjust and 

unreasonable practice under section 

201(b). 

290. Some parties have suggested that 

the Commission cannot adopt a rule 

banning paid prioritization under Title 

II. We disagree and conclude that paid 

prioritization is an unjust and 

unreasonable practice under section 

201(b). The unjust and unreasonable 


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standards in sections 201 and 202 afford 

the Commission significant discretion to 

distinguish acceptable behavior from 

behavior that violates the Act. Indeed, 

the very terms ‘‘unjust’’ and 

‘‘unreasonable’’ are broad, inviting the 

Commission to undertake the kind of 

line-drawing that is necessary to 

differentiate just and reasonable 

behavior on the one hand from unjust 

and unreasonable behavior on the other. 

(As the D.C. Circuit has stated, for 

example, ‘‘the generality of these terms 

. . . opens a rather large area for the free 

play of agency discretion, limited of 

course by the familiar ‘arbitrary’ and 

‘capricious’ standard in the 

Administrative Procedure Act.’’ Bell 

Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 

1202 (D.C. Cir. 1996). Stated differently, 

because both sections ‘‘set out broad 

standards of conduct,’’ it is up to the 

‘‘Commission [to] give[] the standards 

meaning by defining practices that run 

afoul of carriers’ obligation, either by 

rulemaking or by case-by-case 

adjudication.’’) 

291. Acting within this discretion, the 

Commission has exercised its authority, 

both through adjudication and 

rulemaking, under section 201(b) to ban 

unjust and unreasonable carrier 

practices as unlawful under the Act. 

(The Commission need not proceed 

through adjudication in announcing a 

broad ban on a particular practice. 

Indeed, the text of section 201(b) itself 

gives the Commission authority to 

‘‘prescribe such rules and regulations as 

may be necessary in the public interest 

to carry out the provisions of this 

chapter.’’ 47 U.S.C. 201(b).) Although 

the particular circumstances have 

varied, in reviewing these precedents, 

we find that the Commission generally 

takes this step where necessary to 

protect competition and consumers 

against carrier practices for which there 

was either no cognizable justification for 

the action or where the public interest 

in banning the practice outweighed any 

countervailing policy concerns. Based 

on the record here, we find that paid 

prioritization presents just such a case, 

threatening harms to consumers, 

competition, innovation, and 

deployment that outweigh any possible 

countervailing justification of public 

interest benefit. Our interpretation and 

application of section 201(b) in this case 

to ban paid prioritization is further 

bolstered by the directive in section 706 

to take actions that will further 

broadband deployment. 

292. Several commenters argue that 

we cannot ban paid prioritization under 

section 202(a), pointing to Commission 

precedents allowing carriers to engage 

in discrimination so long as it is 

reasonable. As discussed above, 

however, we adopt this rule pursuant to 

sections 201(b) and 706, not 202(a). And 

nothing about section 202(a) prevents us 

from doing so. We recognize that the 

Commission has historically interpreted 

section 202(a) to allow carriers to engage 

in reasonable discrimination, including 

by charging some customers more for 

better, faster, or more service. But those 

precedents stand for the proposition 

that such discrimination is permitted, 

not that it must be allowed in all cases. 

(To be sure, section 202(a) prohibits 

‘‘unreasonable discrimination’’ for 

‘‘like’’ communications services. But 

this provision does not, on its face, 

deprive the Commission of the authority 

to take actions under other provisions of 

the Act against discrimination that may 

not constitute ‘‘unreasonable 

discrimination’’ under section 202(a).) 

None of those cases of discrimination 

presented the kinds of harms 

demonstrated in the record here—harms 

that form the basis of our decision to 

ban the practice as unjust and 

unreasonable under section 201(b), not 

202(a). Furthermore, none of those 

precedents involved practices that the 

Commission has twice found threaten to 

create barriers to broadband deployment 

that should be removed under section 

706. In light of our discretion in 

interpreting and applying sections 201 

and 202 and insofar as section 706(a) is 

‘‘a ‘fail-safe’ that ‘ensures’ the 

Commission’s ability to promote 

advanced services,’’ we decline to 

interpret section 202(a) as preventing 

the Commission from exercising its 

authority under sections 201(b) and 706 

to ban paid prioritization practices that 

harm Internet openness and 

deployment. (To the extent our prior 

precedents suggest otherwise, for the 

reasons discussed in the text, we 

disavow such an interpretation as 

applied to the open Internet context.) 

293. With respect to mobile 

broadband Internet access services, our 

bright-line rules are also grounded in 

the Commission’s Title III authority to 

ensure that spectrum licensees are 

providing service in a manner 

consistent with the public interest. 

294. No-Unreasonable Interference/

Disadvantage Standard. As with our 

bright-line rules, the no-unreasonable 

interference/disadvantage standard we 

adopt today is supported by our section 

706 authority. Beyond the practices 

addressed by our bright-line rules, we 

recognize that broadband providers may 

implement unknown practices or engage 

in new types of practices in the future 

that could threaten harm by 

unreasonably interfering with the ability 

of end users and edge providers to use 

broadband Internet access services to 

reach one another. Such unreasonable 

interference creates a barrier that 

impedes the virtuous cycle, threatening 

the open nature of the Internet to the 

detriment of consumers, competition, 

and deployment. For conduct outside 

the three bright-line rules, we adopt the 

no-unreasonable interference/

disadvantage standard to ensure that 

broadband providers do not engage in 

practices that threaten the open nature 

of the Internet in other or novel ways. 

This standard is tailored to the open 

Internet harms we wish to prevent, 

including harms to consumers, 

competition, innovation, and free 

expression—all of which could impair 

the virtuous cycle and thus deter 

broadband deployment, undermining 

the goals of section 706. 

295. The no-unreasonable 

interference/disadvantage standard is 

also supported by section 201 and 202 

of the Act, which require broadband 

providers to engage in practices that are 

just and reasonable, and not 

unreasonably discriminatory. The 

prohibition on no-unreasonable 

interference/disadvantage represents 

our interpretation of these 201 and 202 

obligations in the open Internet 

context—an interpretation that is 

informed by section 706’s goals of 

promoting broadband deployment. 

(Given the generality of the terms in 

sections 201 and 202, the Commission 

has significant discretion when 

interpreting how those sections apply to 

the different services subject to Title II.) 

In other words, for BIAS, we will 

evaluate whether a practice is unjust, 

unreasonable, or unreasonably 

discriminatory using this nounreasonable interference/disadvantage 

standard. We note, however, that this 

rule—on its own—does not constitute 

common carriage per se. (Not all 

requirements which apply to common 

carriers need impose common carriage 

per se. See Verizon, 740 F.3d at 652 

(citing Cellco, 700 F.3d at 547 

(‘‘[C]ommon carriage is not all or 

nothing—there is a gray area in which 

although a given regulation might be 

applied to common carriers, the 

obligations imposed are not common 

carriage per se. It is in this realm—the 

space between per se common carriage 

and per se private carriage—that the 

Commission’s determination that a 

regulation does or does not confer 

common carrier status warrants 

deference.’’)); Id. at 653 (citing NARUC 

v. FCC, 533 F.2d 601, 608 (D.C. Cir. 

1976) (NARUC II) (‘‘Since it is clearly 

possible for a given entity to carry on 

many types of activities, it is at least 


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logical to conclude that one may be a 

common carrier with regard to some 

activities but not others.’’)).) The nounreasonable interference/disadvantage 

standard, standing alone, contains no 

obligation to provide broadband service 

to any consumer or edge provider and 

would not, in its isolated application, 

necessarily preclude individualized 

negotiations so long as they do not 

otherwise unreasonably interfere with 

the ability of end users and edge 

providers to use broadband Internet 

access services to reach one another. 

Rather, particular practices or 

arrangements that are not barred by our 

rules against blocking, throttling, and 

paid prioritization will be evaluated 

based on the facts and circumstances 

they present using a series of factors 

specifically designed to protect the 

virtuous cycle of innovation and 

deployment. Thus, this is a rule tied to 

particular harms. Broadband providers, 

having chosen to provide BIAS, may not 

do so in a way that harms the virtuous 

cycle. 

296. For mobile broadband providers, 

the no-unreasonable interference/

disadvantage standard finds additional 

support in the Commission’s Title III 

authority as discussed above. The 

Commission has authority to ensure that 

broadband providers, having obtained a 

spectrum license to provide mobile 

broadband service, must provide that 

service in a manner consistent with the 

public interest. (The Commission has 

broad authority to prescribe the nature 

of services to be rendered by licensed 

stations, consistent with the public 

interest. 47 U.S.C. 303(b); Cellco 

Partnership v. FCC, 700 F.3d 534, 542 

(D.C. Cir. 2012) (‘‘Although Title III does 

not ‘confer an unlimited power,’ the 

Supreme Court has emphasized that it 

does endow the Commission with 

‘expansive powers’ and a 

‘comprehensive mandate to ‘encourage 

the larger and more effective use of 

radio in the public interest.’ ’’) (internal 

citations omitted) (quoting NBC v. 

United States, 319 U.S. 190, 216, 219 

(1943)).) This standard provides 

guidance on how the Commission will 

evaluate particular broadband practices, 

not otherwise barred by our bright-line 

rules, to ensure that they are consistent 

with the public interest. 

297. Transparency Rule. The D.C. 

Circuit severed and upheld the 

Commission’s 2010 transparency rule in 

Verizon. While the majority did not 

expressly opine on the legal authority 

for the Commission’s prior transparency 

rule, we feel confident that like the 2010 

transparency rule, the enhanced 

transparency rule we adopt today falls 

well within multiple, independent 

sources of the Commission’s authority. 

Beginning with section 706, the 

transparency rule ensures that 

consumers have sufficient information 

to make informed choices thereby 

facilitating competition in the local 

telecommunications market (to the 

extent competitive choices are 

available). (To encourage deployment of 

‘‘advanced telecommunications 

capability,’’ section 706(a) authorizes 

the Commission to engage in measures 

that ‘‘promote competition in the local 

telecommunications market.’’ 47 U.S.C. 

1302(a). And section 706(b) references 

‘‘promoting competition in the 

telecommunications market’’ as among 

the immediate actions that Commission 

shall take to accelerate deployment of 

‘‘advanced telecommunications 

capability’’ upon a determination that it 

is not being reasonably and timely 

deployed. 47 U.S.C. 1302(b). We 

interpret these references to the 

‘‘telecommunications market’’ to 

include the market for ‘‘advanced 

telecommunications capability.’’ In any 

event, having classified broadband 

Internet access services as 

‘‘telecommunications services,’’ the 

Commission actions to promote 

competition among broadband Internet 

access services clearly promote 

competition in the ‘‘telecommunications 

market.’’) Furthermore, these 

disclosures remove potential 

information barriers by ensuring that 

edge providers have the necessary 

information to develop innovative 

products and services that rely on the 

broadband networks to reach 

consumers, a crucial arc of the virtuous 

cycle of broadband deployment. Our 

transparency rule is also supported by 

Title II. The Commission has relied on 

section 201(b) in related billing contexts 

to ensure that carriers convey accurate 

and sufficient information about the 

services they provide to consumers. We 

do so here as well. (For the reasons 

discussed above, we likewise rely on 

Title III to ensure that spectrum 

licensees provide mobile broadband 

Internet access service consistent with 

the public interest.) 

298. Enforcement. We also make clear 

that we have ample authority to enforce 

the rules we adopt today. Our rules 

today carry out the provisions of the 

Communications Act and are thus are 

covered by our Title IV and V 

authorities to investigate and enforce 

violations of these rules. With specific 

respect to section 706, as noted above, 

in Verizon, the D.C. Circuit suggested 

that section 706 was part of the 

Communications Act of 1934. Under 

such a reading, rules adopted pursuant 

to section 706 fall within our Title IV 

and V authorities. But even if this were 

not the case, we believe it reasonable to 

interpret section 706 itself as a grant of 

authority to investigate and enforce our 

rules. (Moreover, as discussed above, to 

the extent that section 706 was not 

viewed as part of the Communications 

Act, we have authority under section 

4(i) of the Communications Act to adopt 

rules implementing section 706. Thus, 

even then the Commission’s rules, 

insofar as they are based on our 

substantive jurisdiction under section 

706, nonetheless would be issued under 

the Communications Act.) Our 

enforcement authority was not 

explicitly discussed in either the 2010 

Open Internet Order or the Verizon case. 

As noted above, the court did cite as 

reasonable, however, the Commission’s 

view that Congress, in placing upon the 

Commission the obligation to carry out 

the purposes of section 706, 

‘‘necessarily invested the Commission 

with the statutory authority to carry out 

those acts.’’ We believe it likewise 

reasonable to conclude that, having 

provided the Commission with 

affirmative legal authority to take 

regulatory measures to further section 

706’s goals, Congress invested the 

Commission with the authority to 

enforce those measures as needed to 

ensure those goals are achieved. Indeed, 

some have suggested that the 

Commission could take enforcement 

action pursuant to section 706 itself, 

without adopting rules. 

G. Other Laws and Considerations 

299. In the 2014 Open Internet NPRM, 

the Commission tentatively concluded 

that it should retain provisions which 

make clear that the open Internet rules 

do not alter broadband providers’ rights 

or obligations with respect to other 

laws, safety and security considerations, 

or the ability of broadband providers to 

make reasonable efforts to address 

transfers of unlawful content and 

unlawful transfers of content. We affirm 

this tentative conclusion and reiterate 

today that our rules are not intended to 

expand or contract broadband 

providers’ rights or obligations with 

respect to other laws or safety and 

security considerations—including the 

needs of emergency communications 

and law enforcement, public safety, and 

national security authorities. Similarly, 

open Internet rules protect only lawful 

content, and are not intended to inhibit 

efforts by broadband providers to 

address unlawful transfers of content or 

transfers of unlawful content. 


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19782 Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 

1. Emergency Communications and 

Safety and Security Authorities 

300. In the 2010 Open Internet Order 

we adopted a rule that acknowledges 

the ability of broadband providers to 

serve the needs of law enforcement and 

the needs of emergency 

communications and public safety, 

national, and homeland security 

authorities. This rule remains in effect 

today. To make clear that open Internet 

protections coexist with other legal 

frameworks governing the needs of 

safety and security authorities, we retain 

this rule, which reads as follows: 

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. 

301. In retaining this rule, we reiterate 

that the purpose of the safety and 

security provision is first to ensure that 

open Internet rules do not restrict 

broadband providers in addressing the 

needs of law enforcement authorities, 

and second to ensure that broadband 

providers do not use the safety and 

security provision without the 

imprimatur of a law enforcement 

authority, as a loophole to the rules. 

Application of the safety and security 

rule should be tied to invocation by 

relevant authorities rather than to a 

broadband provider’s independent 

notion of the needs of law enforcement. 

302. The record is generally 

supportive of our proposal to reiterate 

that open Internet rules do not 

supersede any obligation a broadband 

provider may have—or limit its ability— 

to address the needs of emergency 

communications or law enforcement, 

public safety, or homeland or national 

security authorities (together, ‘‘safety 

and security authorities’’). Broadband 

providers have obligations under 

statutes such as the Communications 

Assistance for Law Enforcement Act, the 

Foreign Intelligence Surveillance Act, 

and the Electronic Communications 

Privacy Act that could in some 

circumstances intersect with open 

Internet protections. Likewise, in 

connection with an emergency, there 

may be federal, state, tribal, and local 

public safety entities, homeland security 

personnel, and other authorities that 

need guaranteed or prioritized access to 

the Internet in order to coordinate 

disaster relief and other emergency 

response efforts, or for other emergency 

communications. Most commenters 

recognize the benefits of clarifying that 

these obligations are not inconsistent 

with open Internet rules. 

303. Some commenters have proposed 

revisions to the existing rule which 

would expand its application to public 

utilities and other critical infrastructure 

operators. Because we make sufficient 

accommodation for these concerns 

elsewhere, we choose not to modify this 

provision to include critical 

infrastructure. 

2. Transfers of Unlawful Content and 

Unlawful Transfers of Content 

304. In the NPRM, we tentatively 

concluded that we should retain the 

definition of reasonable network 

management we previously adopted, 

which does not include preventing 

transfer of unlawful content or the 

unlawful transfer of content as a 

reasonable practice. We affirm this 

tentative conclusion and re-state that 

open Internet rules do not prohibit 

broadband providers from making 

reasonable efforts to address the transfer 

of unlawful content or unlawful 

transfers of content to ensure that open 

Internet rules are not used as a shield to 

enable unlawful activity or to deter 

prompt action against such activity. For 

example, the no-blocking rule should 

not be invoked to protect copyright 

infringement, which has adverse 

consequences for the economy, nor 

should it protect child pornography. We 

reiterate that our rules do not alter the 

copyright laws and are not intended to 

prohibit or discourage voluntary 

practices undertaken to address or 

mitigate the occurrence of copyright 

infringement. After consideration of the 

record, we retain this rule, which is 

applicable to both fixed and mobile 

broadband providers engaged in 

broadband Internet access service and 

reads as follows: 

Nothing in this part prohibits reasonable 

efforts by a provider of broadband Internet 

access service to address copyright 

infringement or other unlawful activity. 

305. Some commenters contend that 

this rule promotes the widespread use 

of intrusive packet inspection 

technologies by broadband providers to 

filter objectionable content and that 

such monitoring poses a threat to 

customers’ privacy rights. Certainly, 

many broadband providers have the 

technical tools to conduct deep packet 

inspection of unencrypted traffic on 

their networks, and consumer privacy is 

a paramount concern in the Internet age. 

Nevertheless, we believe that broadband 

monitoring concerns are adequately 

addressed by the rules we adopt today, 

so we decline to alter this provision. 

This rule is limited to protecting 

‘‘reasonable efforts . . . to address 

copyright infringement or other 

unlawful activity.’’ We retain the 

discretion to evaluate the 

reasonableness of broadband providers’ 

practices under this rule on a case-bycase basis. Consumers also have many 

tools at their disposal to protect their 

privacy against deep packet 

inspection—including SSL encryption, 

virtual private networks, and routing 

methods like TOR. Further, the 

complaint processes we adopt today add 

to these technical methods and advance 

consumer interests in this area. 

IV. Declaratory Ruling: Classification of 

Broadband Internet Access Services 

306. The Verizon court upheld the 

Commission’s use of section 706 as a 

substantive source of legal authority to 

adopt open Internet protections. But it 

held that, ‘‘[g]iven the Commission’s 

still-binding decision to classify 

broadband providers . . . as providers 

of ‘information services,’ ’’ open Internet 

protections that regulated broadband 

providers as common carriers would 

violate the Act. Rejecting the 

Commission’s argument that broadband 

providers only served retail consumers, 

the Verizon court went on to explain 

that ‘‘broadband providers furnish a 

service to edge providers, thus 

undoubtedly functioning as edge 

providers’ ‘carriers,’ ’’ and held that the 

2010 no-blocking and no-unreasonable 

discrimination rules impermissibly 

‘‘obligated [broadband providers] to act 

as common carriers.’’ 

307. The Verizon decision thus made 

clear that section 706 affords the 

Commission with substantive authority 

and that open Internet protections are 

within the scope of that authority. And 

this Order relies on section 706 for the 

open Internet rules. But, in light of 

Verizon, absent a classification of 

broadband providers as providing a 

‘‘telecommunications service,’’ the 

Commission may only rely on section 

706 to put in place open Internet 

protections that steer clear of what the 

court described as common carriage per 

se regulation. 

308. Taking the Verizon decision’s 

implicit invitation, we revisit the 

Commission’s classification of the retail 

broadband Internet access service as an 

information service (The Commission 

has previously classified cable modem 

Internet access service, wireline 

broadband Internet access service, and 

Broadband over Power Line (BPL)- 

enabled Internet access service as 

information services. The Commission 

has referred to these services as ‘‘wired’’ 

broadband Internet access services. The 

Commission has also previously 


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classified ‘‘wireless’’ broadband Internet 

access, which it defined as a service that 

‘‘uses spectrum, wireless facilities and 

wireless technologies to provide 

subscribers with high-speed 

(broadband) Internet access capabilities, 

. . . whether offered using mobile, 

portable, or fixed technologies,’’ as 

information services) and clarify that 

this service encompasses the so-called 

‘‘edge service.’’ Based on the updated 

record, we conclude that retail 

broadband Internet access service is best 

understood today as an offering of a 

‘‘telecommunications service.’’ (As 

discussed in greater detail below, our 

classification decision arises from our 

reconsideration of past interpretations 

and applications of the Act. We thus 

conclude that the classification 

decisions in this Order appropriately 

apply only on a prospective basis. See, 

e.g., Verizon v. FCC, 269 F.3d 1098 (D.C. 

Cir. 2001) (‘‘In a case in which there is 

a substitution of new law for old law 

that was reasonably clear, a decision to 

deny retroactive effect is 

uncontroversial.’’) (internal quotations 

omitted).) 

309. Below we discuss the history of 

the classification of broadband Internet 

access service, describe our rationale for 

revisiting that classification, and 

provide a detailed explanation of our 

reclassification of broadband Internet 

access service. 

A. History of Broadband Internet 

Classification 

310. Congress created the Commission 

‘‘[f]or the purpose of regulating 

interstate and foreign commerce in 

communication by wire and radio so as 

to make available, so far as possible, to 

all people of the United States . . . a 

rapid, efficient, Nation-wide, and worldwide wire and radio communication 

service with adequate facilities at 

reasonable charges, 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 communication.’’ section 2 of the 

Communications Act grants the 

Commission jurisdiction over ‘‘all 

interstate and foreign communication by 

wire or radio.’’ As the Supreme Court 

explained in the radio context, Congress 

charged the Commission with 

‘‘regulating a field of enterprise the 

dominant characteristic of which was 

the rapid pace of its unfolding’’ and 

therefore intended to give the 

Commission sufficiently ‘‘broad’’ 

authority to address new issues that 

arise with respect to ‘‘fluid and 

dynamic’’ communications 

technologies. (National Broadcasting 

Co., Inc. v. United States, 319 U.S. 190, 

219 (1943). The Court added that ‘‘[i]n 

the context of the developing problems 

to which it was directed, the Act gave 

the Commission . . . expansive powers 

. . . [and] a comprehensive mandate.’’) 

No one disputes that Internet access 

services are within the Commission’s 

subject-matter jurisdiction and 

historically have been supervised by the 

Commission. 

311. The Computer Inquiries. In 1966, 

the Commission initiated its Computer 

Inquiries ‘‘to ascertain whether the 

services and facilities offered by 

common carriers are compatible with 

the present and anticipated 

communications requirements of 

computer users.’’ In the decision known 

as Computer I, the Commission required 

‘‘maximum separation’’ between large 

carriers that offered data transmission 

services subject to common carrier 

requirements and their affiliates that 

sold data processing services. Refining 

this approach, in Computer II and 

Computer III the Commission required 

telephone companies that provided 

‘‘enhanced services’’ over their own 

transmission facilities to separate out 

and offer on a common carrier basis the 

transmission component underlying 

their enhanced services. 

312. Commenters disagree about the 

significance of the Computer Inquiries. 

We believe the Computer Inquiries are 

relevant in at least two important 

respects. First, in Computer II the 

Commission distinguished ‘‘basic’’ from 

‘‘enhanced’’ services, a distinction that 

Congress embraced when it adopted the 

Telecommunications Act of 1996. Basic 

services offered on a common carrier 

basis were subject to Title II; enhanced 

services were not. When Congress 

enacted the definitions of 

‘‘telecommunications service’’ and 

‘‘information service’’ in the 

Telecommunications Act of 1996, it 

substantially incorporated the ‘‘basic’’ 

and ‘‘enhanced’’ service classifications. 

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 in this 

proceeding. (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.) 

313. Second, the Computer Inquiries 

disprove the claim that the Commission 

has never before mandatorily applied 

Title II to the transmission component 

of Internet access service. (As discussed 

below, a large number of rural local 

exchange carriers (LECs) have also 

chosen to offer broadband transmission 

service as a telecommunications service 

subject to the provisions of Title II.) 

From 1980 to 2005, facilities-based 

telephone companies were obligated to 

offer the transmission component of 

their enhanced service offerings— 

including broadband Internet access 

service offered via digital subscriber line 

(DSL)—to unaffiliated enhanced service 

providers on nondiscriminatory terms 

and conditions pursuant to tariffs or 

contracts governed by Title II. There is 

no disputing that until 2005, Title II 

applied to the transmission component 

of DSL service. 

314. Prior Classification Decisions. 

Several commenters, as well as the 

dissenting statements, claim that an 

unbroken line of Commission and court 

precedent, dating back to the Stevens 

Report in 1998, supports the 

classification of Internet access service 

as an information service, and that this 

classification is effectively etched in 

stone. These commenters ignore not 

only the Supreme Court but our 

precedent demonstrating that the 

relevant statutory definitions are 

ambiguous, and that classifying 

broadband Internet access service as a 

telecommunications service is a 

permissible interpretation of the Act. 

Indeed, several of the most vocal 

opponents of reclassification previously 

argued that the Commission not only 

may, but should, classify the 

transmission component of broadband 

Internet access service as a 

telecommunications service. 

(Contemporaneously, Verizon and the 

United States Telecom Association 

argued in the Gulf Power litigation 

before the Supreme Court that cable 

modem service includes a 

telecommunications service.) 

315. To begin with, these commenters 

misconstrue the scope of the Stevens 

Report, which was a report to Congress 

concerning the implementation of 

universal service mandates, and not a 

binding Commission Order classifying 

Internet access services. Moreover, 

when the Commission issued that 

report, in 1998, broadband Internet 

access service was at ‘‘an early stage of 

deployment to residential customers’’ 

and constituted a tiny fraction of all 

Internet connections. Virtually all 

households with Internet connections 

used traditional telephone service to 

dial-up their Internet Service Provider 

(ISP), which was typically a separate 

entity from their telephone company. In 

the Stevens Report, the Commission 


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stated that Internet access service as it 

was then typically being provided was 

an ‘‘information service.’’ The Stevens 

Report reserved judgment on whether 

entities that provided Internet access 

over their own network facilities were 

offering a separate telecommunications 

service. The Commission further noted 

that ‘‘the question may not always be 

straightforward whether, on the one 

hand, an entity is providing a single 

information service with 

communications and computing 

components, or, on the other hand, is 

providing two distinct services, one of 

which is a telecommunications service.’’ 

A few months after sending the Stevens 

Report to Congress, the Commission 

concluded that ‘‘[a]n end-user may 

utilize a telecommunications service 

together with an information service, as 

in the case of Internet access.’’ In a 

follow-up order, the Commission 

affirmed its conclusion that ‘‘xDSLbased advanced services constitute 

telecommunications services as defined 

by section 3(46) of the Act.’’ (The 

definition of telecommunications 

service is now in section 3(53) of the 

Act, 47 U.S.C. 153(53). The Advanced 

Services Remand Order was vacated in 

part by the D.C. Circuit in WorldCom v. 

FCC, 246 F.3d 690 (D.C. Cir. 2001). 

Specifically, the D.C. Circuit vacated the 

remand of the Commission’s 

classification of DSL-based advanced 

services as ‘‘telephone exchange 

service’’ or ‘‘exchange access.’’ 

‘‘Telephone exchange service’’ and 

‘‘exchange access’’ are relevant in 

determining whether a provider is a 

‘‘local exchange carrier.’’ It has no 

bearing on the classification of a 

particular service offering as a 

telecommunications or information 

service under the Act. As such, the 

further history of the Advanced Services 

Remand Order is inapposite to the 

Commission’s discussion of 

telecommunications and information 

services in that Order.) 

316. The courts addressed the 

statutory classification of broadband 

Internet access service in June 2000, 

when the United States Court of 

Appeals for the Ninth Circuit held in 

AT&T Corp. v. City of Portland that 

cable modem service is a 

telecommunications service to the 

extent that the cable operator ‘‘provides 

its subscribers Internet transmission 

over its cable broadband facility,’’ and 

an information service to the extent the 

operator acts as a ‘‘conventional’’ ISP. 

The Ninth Circuit’s decision thus put 

cable companies’ broadband 

transmission service on a regulatory par 

with DSL transmission service. (In 2001, 

SBC Communications and BellSouth 

acknowledged the significance of the 

Computer Inquiries, the Advanced 

Services Order, and the Ninth Circuit’s 

decision in City of Portland: ‘‘The 

Commission currently views the DSLenabled transmission path underlying 

incumbent LEC broadband Internet 

services as a ‘telecommunications 

service’ under the Act. As the Ninth 

Circuit recognized, the exact same logic 

applies to cable broadband: ‘to the 

extent that [a cable ISP] provides its 

subscribers Internet transmission over 

its cable broadband facility, it is 

providing a telecommunications service 

as defined in the Communications 

Act.’ ’’) 

317. Three months later, the 

Commission issued the Cable Modem 

Notice of Inquiry, which sought 

comment on whether cable modem 

service should be treated as a 

telecommunications service under Title 

II or an information service subject to 

Title I. In response, the Bell Operating 

Companies (BOCs) unanimously argued 

that the Commission lawfully could 

determine that cable modem service 

includes a telecommunications service. 

Verizon and Qwest argued that the 

transmission component of cable 

modem service is a telecommunications 

service. SBC Communications and 

BellSouth (both now part of AT&T) 

argued that the Commission should 

classify cable modem service as an 

integrated information service subject to 

Title I, but acknowledged that the 

Commission could lawfully find that 

cable modem service includes both a 

telecommunications service and an 

information service. Verizon, SBC, and 

BellSouth also agreed that the 

Commission could adopt a ‘‘middle 

ground’’ legal framework by finding that 

cable modem service is, in part, a 

telecommunications service, but grant 

relief from pricing and tariffing 

obligations by either declaring all 

providers of broadband Internet access 

service to be nondominant or by 

forbearing from enforcing those 

obligations. (Cable operators generally 

argued that the Commission should 

classify cable modem service as either a 

cable service or an information service, 

but not as a telecommunications 

service.) 

318. In March 2002, the Commission 

exercised its authority to interpret 

ambiguous language in the Act and 

addressed the classification of cable 

modem service in the Cable Modem 

Declaratory Ruling. The Commission 

stated that ‘‘[t]he Communications Act 

does not clearly indicate how cable 

modem service should be classified or 

regulated.’’ Based on a factual record 

that had been compiled at that time, the 

Commission described cable modem 

service as ‘‘typically includ[ing] many 

and sometimes all of the functions made 

available through dial-up Internet access 

service, including content, email 

accounts, access to news groups, the 

ability to create a personal Web page, 

and the ability to retrieve information 

from the Internet.’’ The Commission 

noted that cable modem providers often 

consolidated these functions ‘‘so that 

subscribers usually do not need to 

contract separately with another 

Internet access provider to obtain 

discrete services or applications.’’ (The 

Commission defined cable modem 

service as ‘‘a service that uses cable 

system facilities to provide residential 

subscribers with high-speed Internet 

access, as well as many applications or 

functions that can be used with highspeed Internet access.’’) 

319. The Commission identified a 

portion of cable modem service as 

‘‘Internet connectivity,’’ which it 

described as establishing a physical 

connection to the Internet and operating 

or interconnecting with the Internet 

backbone, and sometimes including 

protocol conversion, Internet Protocol 

(IP) address number assignment, DNS, 

network security, caching, network 

monitoring, capacity engineering and 

management, fault management, and 

troubleshooting. The Ruling also noted 

that ‘‘[n]etwork monitoring, capacity 

engineering and management, fault 

management, and troubleshooting are 

Internet access service functions that 

. . . serve to provide a steady and 

accurate flow of information between 

the cable system to which the subscriber 

is connected and the Internet.’’ The 

Commission distinguished these 

functions from ‘‘Internet applications 

provided through cable modem 

services,’’ including ‘‘email, access to 

online newsgroups, and creating or 

obtaining and aggregating content,’’ 

‘‘home pages,’’ and ‘‘the ability to create 

a personal Web page.’’ 

320. The Commission found that 

cable modem service was ‘‘an offering 

. . . which combines the transmission 

of data with computer processing, 

information provision, and computer 

interactivity, enabling end users to run 

a variety of applications.’’ The 

Commission further concluded that, ‘‘as 

it [was] currently offered,’’ cable modem 

service as a whole met the statutory 

definition of ‘‘information service’’ 

because its components were best 

viewed as a ‘‘single, integrated service 

that enables the subscriber to utilize 

Internet access service,’’ with a 

telecommunications component that 

was ‘‘not . . . separable from the data 


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Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19785 

processing capabilities of the service.’’ 

Significantly, the Commission did not 

address whether DNS or any other 

features of cable modem service fell 

within the telecommunications systems 

management exception to the definition 

of ‘‘information service’’ as there was no 

reason to do so. The Cable Modem 

Declaratory Ruling also included a 

notice of proposed rulemaking seeking 

comment on, among other things, 

whether the Commission should require 

cable operators to give unaffiliated 

broadband Internet access service 

providers access to cable broadband 

networks. 

321. In October 2003, the United 

States Court of Appeals for the Ninth 

Circuit vacated the Commission’s 

finding that cable modem service is an 

integrated information service. The 

court concluded that it was bound by 

the prior decision in City of Portland 

that ‘‘the transmission element of cable 

broadband service constitutes 

telecommunications service under the 

terms of the Communications Act.’’ 

322. In 2005, the Supreme Court 

reversed the Ninth Circuit’s decision 

and upheld the Cable Modem 

Declaratory Ruling in Brand X. The 

Court held that the word ‘‘offering’’ in 

the Communications Act’s definitions of 

‘‘telecommunications service’’ and 

‘‘information service’’ is ambiguous, and 

that the Commission’s finding that cable 

modem service is a functionally 

integrated information service was a 

permissible, though perhaps not the 

best, interpretation of the Act. 

323. Following Brand X, the 

Commission issued the Wireline 

Broadband Classification Order, which 

applied the ‘‘information services’’ 

classification at issue in the Cable 

Modem Declaratory Ruling to facilitiesbased wireline broadband Internet 

access services as well and eliminated 

the resulting regulatory asymmetry 

between cable companies and telephone 

companies offering wired Internet 

access service via DSL and other 

facilities. The Wireline Broadband 

Classification Order based this decision 

on a finding that ‘‘providers of wireline 

broadband Internet access service offer 

subscribers the ability to run a variety 

of applications’’ that fit the definition of 

information services, including those 

that enable access to email and the 

ability to establish home pages. The 

Commission therefore concluded that 

‘‘[w]ireline broadband Internet access 

service, like cable modem service, is a 

functionally integrated, finished service 

that inextricably intertwines 

information-processing capabilities with 

data transmission such that the 

consumer always uses them as a unitary 

service.’’ The Commission also 

eliminated the Computer Inquiry 

requirements for wireline Internet 

access service. In 2006, the Commission 

issued the BPL-Enabled Broadband 

Order, which extended the information 

service classification to Internet access 

service provided over power lines. 

324. Subsequently, in 2007 the 

Commission released the Wireless 

Broadband Classification Order, which 

determined that wireless broadband 

Internet access service was likewise an 

information service under the 

Communications Act. The Wireless 

Broadband Classification Order also 

found that although ‘‘the transmission 

component of wireless broadband 

Internet access service is 

‘telecommunications’ . . . the offering 

of the telecommunications transmission 

component as part of a functionally 

integrated Internet access service 

offering is not ‘telecommunications 

service’ under section 3 of the 

[Communications] Act.’’ 

325. The Wireless Broadband 

Classification Order also considered the 

application of section 332 of Title III to 

wireless broadband Internet access 

service and concluded that ‘‘mobile 

wireless broadband Internet access 

service does not meet the definition of 

‘commercial mobile service’ within the 

meaning of section 332 of the Act as 

implemented by the Commission’s 

CMRS rules because such broadband 

service is not an ‘interconnected 

service,’ as defined in the Act and the 

Commission’s rules.’’ 

326. In 2010, the D.C. Circuit rejected 

the Commission’s attempt to enforce 

open Internet principles based on the 

Commission’s Title I ancillary authority 

in Comcast v. FCC. Following Comcast, 

the Commission issued a Notice of 

Inquiry (Broadband Classification NOI) 

that sought comment on the appropriate 

approach to broadband policy in light of 

the D.C. Circuit’s decision. Shortly 

thereafter, the Commission released the 

2010 Open Internet Order. The 2010 

Order was based in part on a revised 

understanding of the Commission’s 

Title I authority—as well as a variety of 

other statutory provisions including 

section 706—and was again challenged 

before the D.C. Circuit in Verizon v. 

FCC. Although the Verizon court 

accepted the Commission’s 

reinterpretation of section 706 as an 

independent grant of legislative 

authority over broadband services, the 

court nonetheless vacated the noblocking and antidiscrimination 

provisions of the Order as imposing de 

facto common carrier status on 

providers of broadband Internet access 

service in violation of the Commission’s 

classification of those services as 

information services. (The Court also 

found that that authority did not allow 

the Commission to subject information 

services or providers of private mobile 

services to treatment as common 

carriers.) 

327. In response to the Verizon 

decision, the Commission released a 

Notice of Proposed Rulemaking (NPRM) 

seeking public input on the ‘‘best 

approach to protecting and promoting 

Internet openness.’’ Among other things, 

the 2014 Open Internet NPRM asked for 

discussion of the proper legal authority 

on which to base open Internet rules. 

The Commission proposed to rely on 

section 706 of the Telecommunications 

Act of 1996, but at the same time stated 

that it would ‘‘seriously consider the 

use of Title II of the Communications 

Act as the basis for legal authority.’’ The 

NPRM sought comment on the benefits 

of both section 706 and Title II, and 

emphasized its recognition that ‘‘both 

section 706 and Title II are viable 

solutions.’’ 

B. Rationale for Revisiting the 

Commission’s Classification of 

Broadband Internet Access Services 

328. We now find it appropriate to 

revisit the classification of broadband 

Internet access service as an information 

service. The Commission has steadily 

and consistently worked to protect the 

open Internet for the last decade, 

starting with the adoption of the 

Internet Policy Statement up through its 

recent 2014 Open Internet NPRM 

following the D.C. Circuit’s Verizon 

decision. Although the Verizon court 

accepted the Commission’s 

interpretation of section 706 as an 

independent grant of authority over 

broadband services, it nonetheless 

vacated the no-blocking and 

antidiscrimination provisions of the 

Open Internet Order. As the Verizon 

decision explained, to the extent that 

conduct-based rules remove broadband 

service providers’ ability to enter into 

individualized negotiations with edge 

providers, they impose per se common 

carrier status on broadband Internet 

access service providers, and therefore 

conflict with the Commission’s prior 

designation of broadband Internet 

access services as information services. 

Thus, absent a finding that broadband 

providers were providing a 

‘‘telecommunications service,’’ the D.C. 

Circuit’s Verizon decision defined the 

bounds of the Commission’s authority to 

adopt open Internet protections to those 

that do not amount to common carriage. 

329. The Brand X Court emphasized 

that the Commission has an obligation 

to consider the wisdom of its 


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19786 Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 

classification decision on a continuing 

basis. An agency’s evaluation of its prior 

determinations naturally includes 

consideration of the law affecting its 

ability to carry out statutory policy 

objectives. As discussed above, the 

record in the Open Internet proceeding 

demonstrates that broadband providers 

continue to have the incentives and 

ability to engage in practices that pose 

a threat to Internet openness, and as 

such, rules to protect the open nature of 

the Internet remain necessary. To 

protect the open Internet, and to end 

legal uncertainty, we must use multiple 

sources of legal authority to protect and 

promote Internet openness, to ensure 

that the Internet continues to grow as a 

platform for competition, free 

expression, and innovation; a driver of 

economic growth; and an engine of the 

virtuous cycle of broadband 

deployment, innovation, and consumer 

demand. Thus, we now find it 

appropriate to examine how broadband 

Internet access services are provided 

today. 

330. Changed factual circumstances 

cause us to revise our earlier 

classification of broadband Internet 

access service based on the voluminous 

record developed in response to the 

2014 Open Internet NPRM. In the 2002 

Cable Modem Declaratory Ruling, the 

Commission observed that ‘‘the cable 

modem service business is still nascent, 

and the shape of broadband deployment 

is not yet clear. Business relationships 

among cable operators and their service 

offerings are evolving.’’ However, 

despite the rapidly changing market for 

broadband Internet access services, the 

Commission’s decisions classifying 

broadband Internet access service are 

based largely on a factual record 

compiled over a decade ago, during this 

early evolutionary period. The premises 

underlying that decision have changed. 

As the record demonstrates and we 

discuss in more detail below, we are 

unable to maintain our prior finding 

that broadband providers are offering a 

service in which transmission 

capabilities are ‘‘inextricably 

intertwined’’ with various proprietary 

applications and services. Rather, it is 

more reasonable to assert that the 

‘‘indispensable function’’ of broadband 

Internet access service is ‘‘the 

connection link that in turn enables 

access to the essentially unlimited range 

of Internet-based services.’’ This is 

evident, as discussed below, from: (1) 

Consumer conduct, which shows that 

subscribers today rely heavily on thirdparty services, such as email and social 

networking sites, even when such 

services are included as add-ons in the 

broadband Internet access provider’s 

service; (2) broadband providers’ 

marketing and pricing strategies, which 

emphasize speed and reliability of 

transmission separately from and over 

the extra features of the service packages 

they offer; and (3) the technical 

characteristics of broadband Internet 

access service. We also note that the 

predictive judgments on which the 

Commission relied in the Cable Modem 

Declaratory Ruling anticipating vibrant 

intermodal competition for fixed 

broadband cannot be reconciled with 

current marketplace realities. 

C. Classification of Broadband Internet 

Access Service 

331. In this section, we reconsider the 

Commission’s prior decisions that 

classified wired and wireless broadband 

Internet access service as information 

services, and conclude that broadband 

Internet access service is a 

telecommunications service subject to 

our regulatory authority under Title II of 

the Communications Act regardless of 

the technological platform over which 

the service is offered. (A 

‘‘telecommunications service’’ is ‘‘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.’’ 47 U.S.C. 153(53). 

‘‘Telecommunications’’ is ‘‘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.’’ Id. 153(50).) We 

both revise our prior classifications of 

wired broadband Internet access service 

and wireless broadband Internet access 

service, and classify broadband Internet 

access service provided over other 

technology platforms. In doing so, we 

exercise the well-established power of 

federal agencies to interpret ambiguous 

provisions in the statutes they 

administer. The Supreme Court 

summed up this principle in Brand X: 

In Chevron, this Court held that ambiguities 

in statutes within an agency’s jurisdiction to 

administer are delegations of authority to the 

agency to fill the statutory gap in reasonable 

fashion. Filling these gaps, the Court 

explained, involves difficult policy choices 

that agencies are better equipped to make 

than courts. If a statute is ambiguous, and the 

implementing agency’s construction is 

reasonable, Chevron requires a federal court 

to accept the agency’s construction of the 

statute, even if the agency’s reading differs 

from what the court believes is the best 

statutory interpretation. 

332. The Court’s application of this 

Chevron test in Brand X makes clear our 

delegated authority to revisit our prior 

interpretation of ambiguous statutory 

terms and reclassify broadband Internet 

access service as a telecommunications 

service. The Court upheld the 

Commission’s prior information services 

classification because ‘‘the statute fails 

unambiguously to classify the 

telecommunications component of cable 

modem service as a distinct offering. 

This leaves federal telecommunications 

policy in this technical and complex 

area to be set by the Commission. . . .’’ 

Where a term in the Act ‘‘admit[s] of 

two or more reasonable ordinary usages, 

the Commission’s choice of one of them 

is entitled to deference.’’ The Court 

concluded, given the ‘‘technical, 

complex, and dynamic’’ questions that 

the Commission resolved in the Cable 

Modem Declaratory Ruling, ‘‘[t]he 

Commission is in a far better position to 

address these questions than we are.’’ 

333. Furthermore, reading the Brand 

X majority, concurring, and dissenting 

opinions together, it is apparent that 

most, and perhaps all, of the nine 

Justices believed that it would have 

been at least permissible under the Act 

to have classified the transmission 

service included with wired Internet 

access service as a telecommunications 

service. Justice Thomas, writing for the 

majority, noted that ‘‘our conclusion 

that it is reasonable to read the 

Communications Act to classify cable 

modem service solely as an ‘information 

service’ leaves untouched Portland’s 

holding that the Commission’s 

interpretation is not the best reading of 

the statute.’’ Justice Breyer concurred 

with Justice Thomas, stating that he 

‘‘believe[d] that the Federal 

Communications Commission’s 

decision f[e]ll[ ] within the scope of its 

statutorily delegated authority,’’ 

although ‘‘perhaps just barely.’’ And in 

dissent, Justice Scalia, joined by Justices 

Souter and Ginsburg, found that the 

Commission had adopted ‘‘an 

implausible reading of the statute’’ and 

that ‘‘the telecommunications 

component of cable-modem service 

retains such ample independent 

identity’’ that it could only reasonably 

be classified as a separate 

telecommunications service. 

334. It is also well settled that we may 

reconsider, on reasonable grounds, the 

Commission’s earlier application of the 

ambiguous statutory definitions of 

‘‘telecommunications service’’ and 

‘‘information service.’’ Indeed, in Brand 

X, the Supreme Court, in the specific 

context of classifying cable modem 

service, instructed the Commission to 

reexamine its application of the 

Communications Act to this service ‘‘on 

a continuing basis’’: 


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[I]f the agency adequately explains the 

reasons for a reversal of policy, ‘‘change is 

not invalidating, since the whole point of 

Chevron is to leave the discretion provided 

by the ambiguities of a statute with the 

implementing agency.’’ ‘‘An initial agency 

interpretation is not instantly carved in 

stone. On the contrary, the agency . . . must 

consider varying interpretations and the 

wisdom of its policy on a continuing basis,’’ 

for example, in response to changed factual 

circumstances, or a change in 

administrations. . . . 

335. More recently, in FCC v. Fox 

Television Stations, Inc., the Supreme 

Court emphasized that, although an 

agency must acknowledge that it is 

changing course when it adopts a new 

construction of an ambiguous statutory 

provision, ‘‘it need not demonstrate to a 

court’s satisfaction that the reasons for 

the new policy are better than the 

reasons for the old one. . . .’’ Rather, it 

is sufficient that ‘‘the new policy is 

permissible under the statute, that there 

are good reasons for it, and that the 

agency believes it to be better, which the 

conscious change of course adequately 

indicates.’’ We discuss in detail below 

why our conclusion that broadband 

Internet access service is a 

telecommunications service is well 

within our authority. Having 

determined that Congress gave the 

Commission authority to determine the 

appropriate classification of broadband 

Internet access service—and having 

provided sufficient justification of 

changed factual circumstances to 

warrant a reexamination of the 

Commission’s prior classification—we 

find, upon interpreting the relevant 

statutory terms, that broadband Internet 

access service, as offered today, 

includes ‘‘telecommunications,’’ and 

falls within the definition of a 

‘‘telecommunications service.’’ 

1. Scope 

336. As discussed below, we conclude 

that broadband Internet access service is 

a telecommunications service. We 

define ‘‘broadband Internet access 

service’’ as a mass-market (By mass 

market, we mean services marketed and 

sold on a standardized basis to 

residential customers, small businesses, 

and other end-user customers such as 

schools and libraries. ‘‘Schools’’ would 

include institutions of higher education 

to the extent that they purchase these 

standardized retail services. See Higher 

Education and Libraries Comments at 11 

(noting that institutions of higher 

education are not ‘‘residential 

customers’’ or ‘‘small businesses’’ and 

uncertainty about whether institutions 

of higher education (and their libraries) 

are included in the term ‘‘schools’’ 

because the term is sometimes 

interpreted as applying only to K 

through 12 schools). For purposes of 

this definition, ‘‘mass market’’ also 

includes broadband Internet access 

service purchased with the support of 

the E-rate, and Rural Healthcare 

programs, as well as any broadband 

Internet access service offered using 

networks supported by the Connect 

America Fund (CAF), but does not 

include enterprise service offerings or 

special access services, which are 

typically offered to larger organizations 

through customized or individually 

negotiated arrangements.) 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 

explained above, see supra note, our use 

of the term ‘‘broadband’’ in this Order 

includes but is not limited to services 

meeting the threshold for ‘‘advanced 

telecommunications capability.’’) This 

term also encompasses any service that 

the Commission finds to be providing a 

functional equivalent of the service 

described in the previous sentence. (The 

Verizon decision upheld the 

Commission’s regulation of broadband 

Internet access service pursuant to 

section 706 and the definition of 

‘‘broadband Internet access service’’ has 

remained part of the Commission’s 

regulations since adopted in 2010. 

Certain parties have raised issues in the 

record regarding the regulatory status of 

mobile messaging services, e.g., SMS/

MMS. We note that the rules we adopt 

today prohibit broadband providers 

from, for example, blocking messaging 

services that are delivered over a 

broadband Internet access service. We 

decline to further address here 

arguments regarding the status of 

messaging within our regulatory 

framework, but instead plan to address 

these issues in the context of the 

pending proceeding considering a 

petition to clarify the regulatory status 

of text messaging services.) 

337. The term ‘‘broadband Internet 

access service’’ includes 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. 

(In classifying wireless broadband 

Internet access as an information 

service, the Commission excluded 

broadband provided via satellite from 

classification. Thus, our action here 

expressly classifies the service for the 

first time. We observe that while our 

classification includes broadband 

Internet access services provided using 

capacity over fixed or mobile satellite or 

submarine cable landing facilities, our 

classification of these services as 

telecommunications services or CMRS 

does not require changes to the 

authorizations for satellite earth 

stations, satellite space stations, or 

submarine cable landing facilities.) For 

purposes of our discussion, we divide 

the various forms of broadband Internet 

access service into the two categories of 

‘‘fixed’’ and ‘‘mobile,’’ rather than 

between ‘‘wired’’ and ‘‘wireless’’ 

service. With these two categories of 

services—fixed and mobile—we intend 

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. We also make clear 

that our classification finding applies to 

all providers of broadband Internet 

access service, as we delineate them 

here, regardless of whether they lease or 

own the facilities used to provide the 

service. (The Commission has 

consistently determined that resellers of 

telecommunications services are 

telecommunications carriers, even if 

they do not own any facilities. Further, 

as the Supreme Court observed in Brand 

X, ‘‘the relevant definitions do not 

distinguish facilities-based and nonfacilities-based carriers.’’) ‘‘Fixed’’ 

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 network. 

The term encompasses the delivery of 

fixed broadband over any medium, 

including various forms of wired 

broadband services (e.g., cable, DSL, 

fiber), fixed wireless broadband services 

(including fixed services using 

unlicensed spectrum), and fixed 

satellite broadband services. ‘‘Mobile’’ 

broadband Internet access service refers 

to a broadband Internet access service 

that serves end users primarily using 

mobile stations. Mobile broadband 

Internet access includes, among other 

things, services that use smartphones or 

mobile-network-enabled tablets as the 

primary endpoints for connection to the 

Internet. (We note that section 337(f)(1) 

of the Act excludes public safety 

services from the definition of mobile 

broadband Internet access service. 47 

U.S.C. 337(f)(1).) The term also 


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encompasses mobile satellite broadband 

services. 

338. In the Verizon opinion, the D.C. 

Circuit concluded 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.’ ’’ It was because the 

court concluded that the Commission 

had treated this distinct service as 

common carriage, that it ‘‘remand[ed] 

the case to the Commission for further 

proceedings consistent with this 

opinion.’’ We conclude now that the 

failure of the Commission’s analysis was 

a failure to explain that the ‘‘service to 

edge providers’’ is subsumed within the 

promise made to the retail customer of 

the BIAS service. For the reasons we 

review herein, the reclassification of 

BIAS necessarily resolves the edgeprovider question as well. In other 

words, the Commission agrees that a 

two-sided market exists and that the 

beneficiaries of the non-consumer side 

either are or potentially could be all 

edge providers. Because our 

reclassification decision treats BIAS as a 

Title II service, Title II applies, as well, 

to the second side of the market, which 

is always a part of, and subsidiary to, 

the BIAS service. The Verizon court 

implicitly followed that analysis when 

it treated the classification of the retail 

end user service as controlling with 

respect to its analysis of the edge 

service; its conclusion that an edge 

service could be not be treated as 

common carriage turned entirely on its 

understanding that the provision of 

retail broadband Internet access services 

had been classified as ‘‘information 

services.’’ The reclassification of BIAS 

as a Title II service thus addresses the 

court’s conclusion that ‘‘the 

Commission would violate the 

Communications Act were it to regulate 

broadband providers as common 

carriers.’’ 

339. Many commenters, while 

holding vastly different views on our 

reclassification of BIAS, are united in 

the view we need not reach the 

regulatory classification of the service 

that the Verizon court identified as 

being furnished to the edge. (We thus 

decline to adopt proposals identifying 

and classifying a separate service 

provided to edge providers that were 

presented in the record, and on which 

we sought comment, including those by 

Mozilla, the Center for Democracy and 

Technology, and Professors Wu and 

Narechania. We believe that our actions 

here adequately address the concerns 

raised by these proposals, consistent 

with both law and fact.) We agree. Our 

reclassification of the broadband 

Internet access service means that we 

can regulate, consistent with the 

Communications Act, broadband 

providers to the extent they are 

‘‘engaged’’ in providing the broadband 

Internet access service. As discussed 

above, a broadband Internet access 

service provider’s representation to its 

end-user customer that it will transport 

and deliver traffic to and from all or 

substantially all Internet endpoints 

necessarily includes the promise to 

transmit traffic to and from those 

Internet end points back to the user. 

Thus, the so-called ‘‘edge service’’ is 

secondary, and in support of, the 

promise made to the end user, and 

broadband provider practices with 

respect to edge providers—including 

terms and conditions for the transfer 

and delivery of traffic to (and from) the 

BIAS subscriber—impact the broadband 

provider’s provision of the Title II 

broadband Internet access service. (This 

is not a novel arrangement. Under 

traditional contract principles, Party A 

(a broadband provider) can contract 

with Party B (a consumer) to provide 

services to Party C (an edge provider). 

That the service is being provided to 

Party C does not, in any way, conflict 

with the legal conclusion that the terms 

and conditions under which that service 

is being provided are governed by the 

agreement—and here the regulatory 

framework— between Parties A and B. 

Most content that flows across the 

broadband provider’s ‘‘last-mile’’ 

network to the retail consumer does not 

involve a direct agreement between 

Parties B and C but, as the Verizon court 

observed, an edge provider, like 

Amazon, could enter into an agreement 

with a broadband provider, like 

Comcast.) For example, where an edge 

provider attempts to purchase favorable 

treatment for its traffic (such as through 

zero rating), that treatment would be 

experienced by the BIAS subscriber 

(such as through an exemption of the 

edge-provider’s data from a usage limit) 

and the impact on the BIAS subscriber, 

if any, would be assessed under Title II. 

That is, the legal question before the 

Commission turns on whether the 

provision of that service to the edge 

provider would be inconsistent with the 

provision of the retail service under 

Title II. That is because the same data 

is flowing between end user and edge 

consumer. (This conclusion does not 

contradict the economic view that a 

broadband provider is operating in a 

two-sided market. See, e.g., supra note. 

A newspaper looks the same whether 

viewed by an advertiser or a subscriber, 

even though their economic relationship 

with the newspaper publisher is 

different. Here the operation of the 

broadband Internet access service is so 

intertwined with the edge service so as 

to compel the conclusion that the BIAS 

reclassification controls any service that 

is being provided to an edge provider.) 

In other words, to the extent that it is 

necessary to examine a separate edge 

service, that service is simply derivative 

of BIAS, constitutes the same traffic, 

and, in any event, fits comfortably 

within the command that practices 

provided ‘‘in connection with’’ a Title II 

service that must themselves be just and 

reasonable. 

340. Broadband Internet access 

service does not include virtual private 

network (VPN) services, content 

delivery networks (CDNs), hosting or 

data storage services, or Internet 

backbone services. The Commission has 

historically distinguished these services 

from ‘‘mass market’’ services and, as 

explained in the 2014 Open Internet 

NPRM, they ‘‘do not provide the 

capability to transmit data to and 

receive data from all or substantially all 

Internet endpoints.’’ (In classifying 

broadband Internet access service as a 

telecommunications service today, the 

Commission does not, and need not, 

reach the question of whether and how 

these services are classified under the 

Communications Act.) We do not 

disturb that finding here. Finally, we 

observe that to the extent that coffee 

shops, bookstores, airlines, private enduser networks such as libraries and 

universities, and other businesses 

acquire broadband Internet access 

service from a broadband provider to 

enable patrons to access the Internet 

from their respective establishments, 

provision of such service by the premise 

operator would not itself be considered 

a broadband Internet access service 

unless it was offered to patrons as a 

retail mass market service, as we define 

it here. Likewise, when a user employs, 

for example, a wireless router or a WiFi hotspot to create a personal Wi-Fi 

network that is not intentionally offered 

for the benefit of others, he or she is not 

offering a broadband Internet access 

service, under our definition, because 

the user is not marketing and selling 

such service to residential customers, 

small business, and other end-user 

customers such as schools and libraries. 

2. The Market Today: Current Offerings 

of Broadband Internet Access Service 

341. We begin our analysis by 

examining how broadband Internet 

access service was and currently is 

offered. In the 2002 Cable Modem 

Declaratory Ruling, the Commission 

observed that ‘‘the cable modem service 

business is still nascent, and the shape 


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of broadband deployment is not yet 

clear. Business relationships among 

cable operators and their service 

offerings are evolving.’’ Despite the 

rapidly changing market for broadband 

Internet access services, the 

Commission’s decisions classifying 

broadband Internet access service are 

based largely on a factual record 

compiled over a decade ago, during this 

early evolutionary period. The record in 

this proceeding leads us to the 

conclusion that providers today 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. 

342. In the past, the Commission has 

identified a number of ways to 

determine what broadband providers 

‘‘offer’’ consumers. In the Cable Modem 

Declaratory Ruling, for example, the 

Commission concluded that ‘‘the 

classification of cable modem service 

turns on the nature of the functions that 

the end user is offered.’’ In the Wireline 

Broadband Classification Order, the 

Commission noted that ‘‘whether a 

telecommunications service is being 

provided turns on what the entity is 

‘offering . . . to the public,’ and 

customers’ understanding of that 

service.’’ In the Wireless Broadband 

Classification Order, the Commission 

stated that ‘‘[a]s with both cable and 

wireline Internet access, [the] definition 

appropriately focuses on the end user’s 

experience, factoring in both the 

functional characteristics and speed of 

transmission associated with the 

service.’’ Similarly, in Brand X, both the 

majority and dissenting opinions 

examined how consumers perceive and 

use cable modem service, technical 

characteristics of the services and how 

it is provided, and analogies to other 

services. 

a. Broadband Internet Access Services at 

Time of Classification 

343. ‘‘Wired’’ Broadband Services. 

The Commission’s Cable Modem 

Declaratory Ruling described cable 

modem service as ‘‘typically includ[ing] 

many and sometimes all of the functions 

made available through dial-up Internet 

access service, including content, email 

accounts, access to news groups, the 

ability to create a personal Web page, 

and the ability to retrieve information 

from the Internet, including access to 

the World Wide Web.’’ The Commission 

also identified functions provided with 

cable modem service that it called 

‘‘Internet connectivity functions.’’ 

(Earlier, in its 2001 AOL/Time Warner 

merger order describing the emerging 

high speed Internet access services 

offered through cable modems, the 

Commission found that ‘‘Internet access 

services consist principally of 

connectivity to the Internet provided to 

end users.’’) These included 

establishing a physical connection to 

the Internet and interconnecting with 

the Internet backbone, protocol 

conversion, Internet Protocol address 

number assignment, domain name 

resolution through DNS, network 

security, caching, network monitoring, 

capacity engineering and management, 

fault management, and troubleshooting. 

In addition, the Commission noted that 

‘‘[n]etwork monitoring, capacity 

engineering and management, fault 

management, and troubleshooting are 

Internet access service functions that 

. . . . serve to provide a steady and 

accurate flow of information between 

the cable system to which the subscriber 

is connected and the Internet.’’ The 

Ruling noted that ‘‘[c]omplementing the 

Internet access functions are Internet 

applications provided through cable 

modem service. These applications 

include traditional ISP services such as 

email, access to online newsgroups, and 

creating or obtaining and aggregating 

content. The cable modem service 

provider will also typically offer 

subscribers a ‘first screen’ or ‘home 

page’ and the ability to create a personal 

Web page.’’ The Commission explained 

that ‘‘[e]-mail, newsgroups, the ability 

for the user to create a Web page that is 

accessible by other Internet users, and 

DNS are applications that are commonly 

associated with Internet access service,’’ 

and that ‘‘[t]aken together, they 

constitute an information service.’’ In 

the Wireline Broadband Classification 

Order, the Commission found that end 

users subscribing to wireline broadband 

Internet access service ‘‘expect to 

receive (and pay for) a finished, 

functionally integrated service that 

provides access to the Internet.’’ 

344. The Commission’s subsequent 

wired broadband classification 

decisions did not describe wired 

broadband Internet access services with 

any greater detail. 

345. Wireless Broadband Services. In 

2007, the Commission described 

wireless broadband Internet access 

service as a service ‘‘that uses spectrum, 

wireless facilities and wireless 

technologies to provide subscribers with 

high-speed (broadband) Internet access 

capabilities.’’ The Commission noted 

that ‘‘many of the mobile telephone 

carriers that provide mobile wireless 

broadband service for mobile handsets 

offer a range of IP-based multimedia 

content and services—including ring 

tones, music, games, video clips and 

video streaming—that are specially 

designed to work with the small screens 

and limited keypads of mobile handsets. 

This content is typically sold through a 

carrier-branded, carrier-controlled 

portal.’’ 

b. The Growth of Consumer Demand 

and Market Supply 

346. The record in this proceeding 

reveals that, since we collected 

information to address the classification 

of cable modem service over a decade 

ago, the market for both fixed and 

mobile broadband Internet access 

service has changed dramatically. 

Between December 2000 and December 

2013, the number of residential Internet 

connections with speeds over 200 kbps 

in at least one direction increased from 

5.2 million to 87.6 million. In 2000, 

only 5 percent of American households 

had a fixed Internet access connection 

with speeds of over 200 kbps in at least 

one direction, as compared to 

approximately 72 percent of American 

households with this same connection 

today. Indeed, as of December 2013, 60 

percent of households have a fixed 

Internet connection with minimum 

speeds of at least 3 Mbps/768 kbps. 

Moreover, between December 2009 and 

December 2013, the number of mobile 

handsets with a residential data plan 

with a speed of at least 200 kbps in one 

direction increased from 43.7 million to 

159.2 million, a 265 percent increase. 

(In addition, the mobile residential 

figures may overstate residential 

handsets because mobile filers report 

the number of ‘‘consumer’’ handsets 

that are not billed to a corporate, noncorporate business, government, or 

institutional customer account, and thus 

could include handsets for which the 

subscriber is reimbursed by their 

employee.) By November 2014, 73.6 

percent of the entire U.S. age 13+ 

population was communicating with 

smart phones, a figure which has 

continued to rise rapidly over the past 

several years. Cisco forecasts that by 

2019, North America will have nearly 

90 percent of its installed base 

converted to smart devices and 

connections, and smart traffic will grow 

to 97 percent of the total global mobile 

traffic. In 2013, the United States and 

Canada were home to almost 260 

million mobile subscriptions for 

smartphones, mobile PCs, tablets, and 

mobile routers. In 2014, that number 

was expected to increase by 20 percent, 

to 300 million subscriptions; by 2020, to 

450 million, or a population penetration 

rate of almost 124 percent. In addition, 

the explosion in the deployment of WiFi technology in the past few years has 


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resulted in consumers increasingly 

using that technology to access third 

party content, applications, and services 

on the Internet, in connection with 

either a fixed broadband service or a 

mobile broadband service. 

347. This widespread penetration of 

broadband Internet access service has 

led to the development of third-party 

services and devices and has increased 

the modular way consumers have come 

to use them. As more American 

households have gained access to 

broadband Internet access service, the 

market for Internet-based services 

provided by parties other than 

broadband Internet access providers has 

flourished. Consumers’ appetite for 

third-party services has also received a 

boost from the shift from dial-up to 

broadband, as a high-speed connection 

makes the Internet much more useful to 

consumers. (For example, early studies 

showed that broadband users are far 

more likely than dial-up users to go 

online to seek out news, look for travel 

information, share computer files with 

others, create content, and download 

games and videos.) The impact of 

broadband on consumers’ demand for 

third-party services is evident in the 

explosive growth of online content and 

application providers. In early 2003, a 

year after the Cable Modem Declaratory 

Ruling, there were approximately 36 

million Web sites. Today there are an 

estimated 900 million. When the 

Commission assessed the cable modem 

service market in the Cable Modem 

Declaratory Ruling, the service at issue 

was offered with various online 

applications, including email, 

newsgroups, and the ability to create a 

Web page. The Commission observed 

that subscribers to cable modem 

services ‘‘usually d[id] not need to 

contract separately’’ for ‘‘discrete 

services or applications’’ such as email. 

Today, broadband service providers still 

provide various Internet applications, 

including email, online storage, and 

customized homepages, in addition to 

newer services such as music streaming 

and instant messaging. But consumers 

are very likely to use their high-speed 

Internet connections to take advantage 

of competing services offered by third 

parties. 

348. For example, companies such as 

Google and Yahoo! offer popular 

alternatives to the email services 

provided to subscribers as part of 

broadband Internet access service 

packages. According to Experian, Gmail 

and Yahoo! Mail were among the ten 

Internet sites most frequently visited 

during the week of January 17, 2015, 

with approximately 400 million and 350 

million visits respectively. Some parties 

even advise consumers specifically not 

to use a broadband provider-based email 

address; because a consumer cannot 

take that email address with them if he 

or she switches providers, some assert 

that using a broadband providerprovided email address results in a 

disincentive to switch to a competitive 

provider due to the attendant 

difficulties in changing an email 

address. Third-party alternatives are 

also widely available for other services 

that may be provided along with 

broadband Internet access service. 

(DNS, caching, and other services that 

enable the efficient transmission of data 

over broadband connections are 

considered in section IV.C.3. below.) 

For example, firms such as Apple, 

Dropbox, and Carbonite provide ‘‘cloudbased’’ storage; services like Go Daddy 

provide Web site hosting; users rely on 

companies such as WordPress and 

Tumblr to provide blog hosting; and 

firms such as Netvibes and Yahoo! 

provide personalized homepages. 

GigaNews and Google provide access to 

newsgroups, while many broadband 

providers have themselves ceased 

offering this service entirely. 

349. More generally, both fixed and 

mobile consumers today largely use 

their broadband Internet access 

connections to access content and 

services that are unaffiliated with their 

broadband Internet access service 

provider. In this regard, perhaps the 

most significant trend is the growing 

popularity of third-party video 

streaming services. By one estimate, 

Netflix and YouTube alone account for 

50 percent of peak Internet download 

traffic in North America. Other sites 

among the most popular in the United 

States include the search engines Google 

and Yahoo!; social networking sites 

Facebook and LinkedIn; e-commerce 

sites Amazon, eBay and Craigslist; the 

user-generated reference site Wikipedia; 

a diverse array of user-generated media 

sites including Reddit, Twitter, and 

Pinterest; and news sources such as 

nytimes.com and CNN.com. Overall, 

broadband providers themselves operate 

very few of the Web sites that 

broadband Internet access services are 

most commonly used to access. 

350. Thus, as a practical matter, 

broadband Internet access service is 

useful to consumers today primarily as 

a conduit for reaching modular content, 

applications, and services that are 

provided by unaffiliated third parties. 

As the Center for Democracy & 

Technology puts it, ‘‘[t]he service that 

broadband providers offer to the public 

is widely understood today, by both the 

providers and their customers, as the 

ability to connect to anywhere on the 

Internet—to any of the millions of 

Internet endpoints—for whatever 

purposes the user may choose.’’ (CDT 

contrasts the current state of affairs with 

an earlier time ‘‘when Internet access 

service providers sought to differentiate 

themselves by offering ‘walled gardens’ 

of proprietary content and users looked 

to their access provider to serve as a 

kind of curator of the chaos of the 

Internet.’’) Indeed, the ability to 

transmit data to and from Internet 

endpoints has become the ‘‘one 

indispensable function’’ that broadband 

Internet access service uniquely 

provides. 

c. Marketing 

351. That broadband Internet access 

services today are primarily offerings of 

Internet connectivity and transmission 

capability is further evident by how 

these services are marketed and priced. 

Commenters cite numerous examples of 

advertisements that emphasize 

transmission speed as the predominant 

feature that characterizes broadband 

Internet access service offerings. For 

example, Comcast advertises that its 

XFINITY Internet service offers ‘‘the 

consistently fast speeds you need, even 

during peak hours,’’ and RCN markets 

its high-speed Internet service as 

providing the ability ‘‘to upload and 

download in a flash.’’ Verizon claims 

that ‘‘[w]hatever your life demands, 

there’s a Verizon FiOS plan with the 

perfect upload/download speed for 

you,’’ while the name of Verizon’s DSLbased service is simply ‘‘High Speed 

Internet.’’ Furthermore, fixed broadband 

providers use transmission speeds to 

classify tiers of service offerings and to 

distinguish their offerings from those of 

competitors. AT&T U-Verse, for 

instance, offers four ‘‘Internet 

Package[s]’’ at different price points, 

differentiated in terms of the 

‘‘Downstream Speeds’’ they provide. 

Verizon meanwhile asserts that ‘‘the 

100% fiber-optic network that powers 

FiOS’’ enables ‘‘a level of speed and 

capacity that cable can’t always compete 

with—especially when it comes to 

upload speeds.’’ On the mobile side, 

mobile broadband providers similarly 

emphasize transmission speed as well 

as reliability and coverage as factors that 

characterize their mobile broadband 

Internet access service offering. AT&T, 

for example, claims that it has the 

‘‘[n]ation’s most reliable 4G LTE 

network’’ and that what 4G LTE means 

is ‘‘speeds up to 10x faster than 3G.’’ 

Sprint advertises its ‘‘Sprint Spark’’ 

service as having its ‘‘fastest ever data 

speeds and stronger in-building signal.’’ 

352. The advertisements discussed 

above link higher transmission speeds 


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and service reliability with enhanced 

access to the Internet at large—to any 

‘‘points’’ a user may wish to reach—not 

only to Internet-based applications or 

services that are provided in 

conjunction with broadband access. 

RCN, for instance, claims that its ‘‘110 

Mbps High-Speed Internet’’ offering is 

‘‘ideal for watching Netflix,’’ a thirdparty video streaming service. Verizon 

claims that FiOS’s ‘‘75/75 Mbps’’ speed 

‘‘works well for uploading and sharing 

videos on YouTube and serious multiuser gaming’’ presumably by using the 

FiOS service to access any combination 

of third-party and Verizon-affiliated 

content and services the user chooses. 

AT&T notes that its 4G LTE service ‘‘lets 

you stream clear, crisp video faster than 

ever before, download songs in a few 

beats, apps almost instantly, and so 

much more.’’ Broadband providers also 

market access to the Internet through 

Wi-Fi. Comcast, for example, notes that 

with its XFinity Internet services, 

subscribers can enjoy ‘‘access to 

millions of hotspots nationwide and 

stay connected while away from home.’’ 

T-Mobile advertises the ability to place 

calls and send messages over Wi-Fi. 

353. Fixed and mobile broadband 

Internet access service providers also 

price and differentiate their service 

offerings on the basis of the quality and 

quantity of data transmission the 

offering provides. AT&T U-Verse, for 

instance, offers four ‘‘Internet 

Package[s]’’ at different price points, 

differentiated in terms of the 

‘‘Downstream Speeds’’ they provide. On 

the mobile side, monthly data 

allowances—i.e., caps on the amount of 

data a user may transmit to and from 

Internet endpoints—are among the 

features that factor most heavily in the 

pricing of service plans. 

354. In short, broadband Internet 

access service is marketed today 

primarily as a conduit for the 

transmission of data across the Internet. 

(The marketing materials discussed here 

also indicate that broadband providers 

hold themselves out indifferently to the 

public when offering broadband Internet 

access service. Within particular service 

areas, broadband providers tend to offer 

uniform prices and services to potential 

customers. As discussed above, these 

offers are widely available through 

advertisements and marketing 

materials.) The record suggests that 

fixed broadband Internet access service 

providers market distinct service 

offerings primarily on the basis of the 

transmission speeds associated with 

each offering. Similarly, mobile 

providers market their service offerings 

primarily on the basis of the speed, 

reliability, and coverage of their 

network. Marketing broadband services 

in this way leaves a reasonable 

consumer with the impression that a 

certain level of transmission 

capability—measured in terms of 

‘‘speed’’ or ‘‘reliability’’—is being 

offered in exchange for the subscription 

fee, even if complementary services are 

also included as part of the offer. 

3. Broadband Internet Access Service Is 

a Telecommunications Service 

355. We now turn to applying the 

statutory terms at issue in light of our 

updated understanding of how both 

fixed and mobile broadband Internet 

access services are offered. Three 

definitional terms are critical to a 

determination of the appropriate 

classification of broadband Internet 

access service. 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, ‘‘information service’’ is 

defined in the Act 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.’’ We observe that the critical 

distinction between a 

telecommunications and an information 

service turns on what the provider is 

‘‘offering.’’ If the offering meets the 

statutory definition of 

telecommunications service, then the 

service is also necessarily a common 

carrier service. 

356. In reconsidering our prior 

decisions and reaching a different 

conclusion, we find that this result best 

reflects the factual record in this 

proceeding, and will most effectively 

permit the implementation of sound 

policy consistent with statutory 

objectives. For the reasons discussed 

above, we find that broadband Internet 

access service, as offered by both fixed 

and mobile providers, is best seen, and 

is in fact most commonly seen, as an 

offering (in the words of Justice Scalia, 

dissenting in Brand X) ‘‘consisting of 

two separate things’’: ‘‘Both ‘high-speed 

access to the Internet’ and other 

‘applications and functions.’ ’’ Although 

broadband providers in many cases 

provide broadband Internet access 

service along with information services, 

such as email and online storage, we 

find that broadband Internet access 

service is today sufficiently 

independent of these information 

services that it is a separate ‘‘offering.’’ 

We also find that domain name service 

(DNS) (DNS is most commonly used to 

translate domain names, such as 

‘‘nytimes.com,’’ into numerical IP 

addresses that are used by network 

equipment to locate the desired 

content.) and caching, (Caching is the 

storing of copies of content at locations 

in a network closer to subscribers than 

the original source of the content. This 

enables more rapid retrieval of 

information from Web sites that 

subscribers wish to see most often.) 

when provided with broadband Internet 

access services, fit squarely within the 

telecommunications systems 

management exception to the definition 

of ‘‘information service.’’ (Hereinafter, 

we refer to this exception as the 

‘‘telecommunications systems 

management’’ exception.) Thus, when 

provided with broadband Internet 

access services, these integrated services 

do not convert broadband Internet 

access service into an information 

service. (One of the dissenting 

statements asserts that Congress could 

not have delegated to the Commission 

the authority to determine whether 

broadband Internet access service is a 

telecommunications service because 

‘‘[h]ad Internet access service been a 

basic service, dominant carriers could 

have offered it (and all related 

computer-processing functionality) 

outside the parameters of the Computer 

Inquiries,’’ but ‘‘I cannot find a single 

suggestion that anyone in Congress, 

anyone at the FCC, anyone in the courts, 

or anyone at all thought this was the law 

during the passage of the 

Telecommunications Act’’ in 1996. See 

Pai Dissent at 37. We disagree with this 

line of reasoning. First, it contradicts the 

Supreme Court’s 2005 holding in Brand 

X, where the Court explicitly 

acknowledged that the Commission had 

previously classified the transmission 

service, which broadband providers 

offer, as a telecommunications service 

and that the Commission could return to 

that classification if it provided an 

adequate justification. Second, and 

underscoring the ambiguity that the 

Brand X court identified in finding that 

the Commission had Chevron deference 

in its classification of broadband 

Internet access service, the dissenting 

statement fails to identify any 


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compelling evidence that Congress 

thought broadband Internet access 

service was an information service.) 

357. The Commission Does Not Bear 

a Special Burden in This Proceeding. 

Opponents of classifying broadband 

Internet access service as a 

telecommunications service advocate a 

narrow reading of the Supreme Court’s 

decision in Brand X. They contend that 

the Court’s decision to affirm the 

classification of cable modem service as 

an information service was driven by 

specific factual findings concerning 

DNS and caching, and argue that the 

Commission may not revisit its decision 

unless it can show that the facts have 

changed. Opponents also cite a passage 

from the Supreme Court’s Fox decision 

suggesting that an agency must provide 

‘‘a more detailed justification than what 

would suffice for a new policy on a 

blank slate’’ where the agency’s ‘‘new 

policy rests upon factual findings that 

contradict those which underlay its 

prior policy,’’ or ‘‘when its prior policy 

has engendered serious reliance 

interests that must be taken into 

account.’’ 

358. We disagree with these 

commenters on both counts. The Fox 

court explained that in these 

circumstances, ‘‘it is not that further 

justification is demanded by the mere 

fact of policy change; but that a 

reasoned explanation is needed for 

disregarding facts and circumstances 

that underlay or were engendered by the 

prior policy.’’ As the D.C. Circuit more 

recently confirmed, ‘‘[t]his does not . . . 

equate to a ‘heightened standard’ for 

reasonableness.’’ The Commission need 

only show ‘‘that the new policy is 

permissible under the statute, that there 

are good reasons for it, and that the 

agency believes it to be better.’’ Above, 

we more than adequately explain our 

changed view of the facts and 

circumstances in the market for 

broadband Internet access services— 

which is evident from consumers’ heavy 

reliance on third-party services and 

broadband Internet access providers’ 

emphasis on speed and reliability of 

transmission separately from and over 

the extra features of the service packages 

they offer. Furthermore, our 

understanding of the facts of how the 

elements of broadband Internet access 

service work has not changed. No one 

has ever disputed what DNS is or how 

it works. The issue is whether it falls 

within the definition of ‘‘information 

service’’ or the telecommunications 

systems management exception. If the 

latter, as we find below, prior factual 

findings that DNS was inextricably 

intertwined with the transmission 

feature of cable modem service do not 

provide support for the conclusion that 

cable modem service is an integrated 

information service. 

359. Moreover, opponents’ reading of 

Brand X ignores the reasoning and 

holding of the Court’s opinion overall. 

As discussed above, the Brand X 

opinion confirms that the Supreme 

Court viewed the statutory classification 

of cable modem service as a judgment 

call for the Commission to make. If the 

Commission had concluded that the 

transmission component of cable 

modem service was a 

telecommunications service, and 

provided a reasoned explanation for its 

decision, it is evident that the Court 

would have deferred to that finding. 

360. In Fox, the Supreme Court also 

suggested that an agency may need to 

provide ‘‘a more detailed justification’’ 

for a change in policy when the prior 

policy ‘‘has engendered serious reliance 

interests.’’ Opponents of reclassification 

contend that broadband providers have 

invested billions of dollars to deploy 

new broadband network facilities in 

reliance on the Title I classification 

decisions and it would be unreasonable 

to change course now. We disagree. As 

a factual matter, the regulatory status of 

broadband Internet access service 

appears to have, at most, an indirect 

effect (along with many other factors) on 

investment. Moreover, the regulatory 

history regarding the classification of 

broadband Internet access service would 

not provide a reasonable basis for 

assuming that the service would receive 

sustained treatment as an information 

service in any event. As noted above, 

the history of the Computer Inquiries 

indicates that, at a minimum the 

regulatory status of these or similar 

offerings involved a highly regulated 

activity for many years. The first formal 

ruling on the classification of broadband 

Internet access service came from the 

Ninth Circuit in 2000, which held that 

the best reading of the relevant statutory 

definitions was that cable modem 

service in fact includes a 

telecommunications service. The Cable 

Modem Declaratory Ruling was 

expressly limited to cable modem 

service ‘‘as it [was] currently offered.’’ 

The lawfulness of the Commission’s 

2002 Cable Modem Declaratory Ruling 

remained unsettled until the Supreme 

Court affirmed it in 2005, and the 

Commission’s Wireline Broadband 

Classification Order was not affirmed 

until two years later, in 2007. In 2010, 

the Commission sought comment on 

reclassifying broadband Internet access 

services, and sought to refresh the 

record again in 2014. While the 

Commission did classify wireless 

broadband Internet access service as an 

information service in 2007, the 

Comcast and Verizon decisions, in 2009 

and 2014 respectively, called into doubt 

the Commission’s ability to rely upon its 

Title I ancillary authority to protect the 

public interest and carry out its 

statutory duties to promote broadband 

investment and deployment. The legal 

status of the information service 

classification thus has been called into 

question too consistently to have 

engendered such substantial reliance 

interests that our reclassification 

decision cannot now be sustained 

absent extraordinary justifications. 

Finally, the forbearance relief we grant 

in the accompanying order in 

conjunction with our reclassification 

decision keeps the scope of our 

proposed regulatory oversight within 

the same general boundaries that the 

Commission earlier anticipated drawing 

under its Title I authority. We thus 

reject the claims that our action here 

unlawfully upsets reasonable reliance 

interests. In any event, we provide in 

this ruling a compelling explanation of 

why changes in the marketing, pricing, 

and sale of broadband Internet access 

service, as well as the technical 

characteristics of how the service is 

offered, now justify a revised 

classification of the service. (In response 

to arguments raised in the dissenting 

statements, we clarify that, even 

assuming, arguendo, that the facts 

regarding how BIAS is offered had not 

changed, in now applying the Act’s 

definitions to these facts, we find that 

the provision of BIAS is best understood 

as a telecommunications service, as 

discussed below, see infra sections 

IV.C.3.b., IV.C.3.c., and disavow our 

prior interpretations to the extent they 

held otherwise.) 

a. Broadband Internet Access Service 

Involves Telecommunications 

361. Broadband Internet Access 

Service Transmits Information of the 

User’s Choosing Between Points 

Specified by the User. 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.’’ It is clear that 

broadband Internet access service is 

providing ‘‘telecommunications.’’ Users 

rely on broadband Internet access 

service to transmit ‘‘information of the 

user’s choosing,’’ ‘‘between or among 

points specified by the user.’’ Time 

Warner Cable asserts that broadband 

Internet access service cannot be a 

telecommunications service because—as 

end users do not know where online 


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content is stored—Internet 

communications allegedly do not travel 

to ‘‘points specified by the user’’ within 

the statutory definition of 

‘‘telecommunications.’’ We disagree. We 

find that the term ‘‘points specified by 

the user’’ is ambiguous, and conclude 

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.’’ 

Although Internet users often do not 

know the geographic location of edge 

providers or other users, there is no 

question that users specify the end 

points of their Internet communications. 

(For example, in transmissions from the 

user to an edge provider, a user either 

directly specifies the domain name of 

the edge provider or utilizes a search 

engine to determine the domain name. 

The application that a user chooses then 

uses DNS to translate the domain name 

into an IP address associated with the 

edge provider, which is placed into the 

packet as its destination. For 

transmissions from an edge provider to 

a user, the edge provider places the 

user’s IP address into the packet as the 

destination IP address.) Consumers 

would be quite upset if their Internet 

communications did not make it to their 

intended recipients or the Web site 

addresses they entered into their 

browser would take them to unexpected 

Web pages. Likewise, numerous forms 

of telephone service qualify as 

telecommunications even though the 

consumer typically does not know the 

geographic location of the called party. 

These include, for example, cell phone 

service, toll free 800 service, and call 

bridging service. In all of these cases, 

the user specifies the desired endpoint 

of the communication by entering the 

telephone number or, in the case of 

broadband Internet access service, the 

name or address of the desired Web site 

or application. More generally, we have 

never understood the definition of 

‘‘telecommunications’’ to require that 

users specify—or even know— 

information about the routing or 

handling of their transmissions along 

the path to the end point, nor do we do 

so now. Further, that there is not a oneto-one correspondence between IP 

addresses and domain names, and that 

DNS often routes the same domain 

name to different locations based on its 

inference of which location is most 

likely to be the one the end user wants, 

does not alter this analysis. It is not 

uncommon in the toll-free arena for a 

single number to route to multiple 

locations, and such a circumstance does 

not transform that service to something 

other than telecommunications. 

362. Information is Transmitted 

Without Change in Form or Content. 

Broadband Internet access service may 

use a variety of protocols to deliver 

content from one point to another. 

However, 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. The information that a 

broadband provider places into a packet 

header as part of the broadband Internet 

access service is for the management of 

the broadband Internet access service 

and it is removed before the packet is 

handed over to the application at the 

destination. Broadband providers thus 

move packets from sender to recipient 

without any change in format or 

content, and ‘‘merely transferring a 

packet to its intended recipient does not 

by itself involve generating, acquiring, 

transforming, processing, retrieving, 

utilizing, or making available 

information.’’ (A BIAS provider, when 

utilizing the Internet Protocol, may 

fragment packets into multiple pieces. 

However, such fragmentation does not 

change the form or content, as the 

pieces are reassembled before the packet 

is handed over to the application at the 

destination.) Rather, ‘‘it is the nature of 

[packet delivery] that the ‘form and 

content of the information’ is precisely 

the same when an IP packet is sent by 

the sender as when that same packet is 

received by the recipient.’’ (For 

example, when a person sends an email, 

he or she expects that the content of the 

email, and any attachments, to be 

delivered to the recipient unaltered in 

content or form. We note that a user 

may choose to use an application, such 

as email, that is a separate information 

service offered by the BIAS provider. 

When this occurs, the provider of the 

information service may place 

information into the packet payload that 

changes the form or content. However, 

this change in form or content is purely 

implemented as part of the separable 

information service. The broadband 

provider, in transmitting the packet via 

BIAS, does not alter the form or content 

of the packet payload.) 

b. Broadband Internet Access Service Is 

a ‘‘Telecommunications Service’’ 

363. Having affirmatively determined 

that broadband Internet access service 

involves ‘‘telecommunications,’’ we also 

find that broadband Internet access 

service is a ‘‘telecommunications 

service.’’ A ‘‘telecommunications 

service’’ is the ‘‘offering of 

telecommunications for a fee directly to 

the public, . . . regardless of the 

facilities used.’’ We find that broadband 

Internet access service providers offer 

broadband Internet access service 

‘‘directly to the public.’’ As discussed 

above, the record indicates that 

broadband providers routinely market 

broadband Internet access services 

widely and to the general public. 

Because a provider is a common carrier 

‘‘by virtue of its functions,’’ we find that 

such offerings are made directly to the 

public within the Act’s definition of 

telecommunications service. We draw 

this conclusion based upon the common 

circumstances under which providers 

offer the service, and we reject the 

suggestion that we must evaluate such 

offerings on a narrower carrier-bycarrier or geographic basis. Further, that 

some broadband providers require 

potential broadband customers to 

disclose their addresses and service 

locations before viewing such an offer 

does not change our conclusion. The 

Commission has long maintained that 

offering a service to the public does not 

necessarily require holding it out to all 

end users. Some individualization in 

pricing or terms is not a barrier to 

finding that a service is a 

telecommunications service. (To the 

extent our prior precedents might 

suggest otherwise, we disavow such an 

interpretation in this context.) 

364. In addition, the implied promise 

to make arrangements for exchange of 

Internet traffic as part of the offering of 

broadband Internet access service does 

not constitute a private carriage 

arrangement. (Commission precedent 

‘‘holds that a carrier will not be a 

common carrier ‘where its practice is to 

make individualized decisions in 

particular cases whether and on what 

terms to serve.’ ’’) First, in offering 

broadband Internet access service to its 

end-user customers, the broadband 

provider has voluntarily undertaken an 

obligation to arrange to transfer that 

traffic on and off its network. Broadband 

providers hold themselves out to carry 

all edge provider traffic to the 

broadband provider’s end user 

customers regardless of source and 

regardless of whether the edge provider 

itself has a specific arrangement with 

the broadband provider. Merely 

asserting that the traffic exchange 

component of the service may have 

some individualized negotiation does 

not alter the nature of the underlying 

service. Second, the record reflects that 

broadband providers assert that 

multiple routes to reach their networks 

are widely and readily available. They 

cannot, at the same time, assert that all 

arrangements for delivering traffic to 

their end-user subscribers are 


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individually negotiated with every edge 

provider. Third, the record reflects that 

the majority of arrangements for traffic 

exchange are informal handshake 

agreements without formalized terms 

and conditions that would indicate any 

kind of individualized negotiations. We 

recognize that there are some 

interconnection agreements that do 

contain more individualized terms and 

conditions. However, this circumstance 

is not inherently different from similarly 

individualized commercial agreements 

for certain enterprise broadband 

services, which the Commission has 

long held to be common carriage 

telecommunications services subject to 

Title II. That the individualized terms 

may be negotiated does not change the 

underlying fact that a broadband 

provider holds the service out directly 

to the public. As discussed above, it 

must necessarily do so, in order to offer 

and provide its broadband Internet 

access service. Further, we note that 

these types of individualized 

negotiations are analogous to other 

telecommunications providers whose 

customer service representatives may 

offer variable terms and conditions to 

customers in circumstances where the 

customer threatens to switch service 

providers. We therefore find that the 

implied representation that broadband 

Internet access service providers will 

arrange for transport of traffic on and off 

their networks as part of the BIAS 

offering does not constitute private 

carriage. As such, we find that 

broadband Internet access service is 

offered ‘‘directly to the public,’’ and 

falls within the definition of 

‘‘telecommunications service.’’ (If an 

offering meets the definition of 

telecommunications service, then the 

service is also necessarily a common 

carrier service.) 

c. Broadband Internet Access Service Is 

Not an ‘‘Information Service’’ 

365. We further find that broadband 

Internet access service is not an 

information service. 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.’’ To the extent that broadband 

Internet access service is offered along 

with some capabilities that would 

otherwise fall within the information 

service definition, they do not turn 

broadband Internet access service into a 

functionally integrated information 

service. To the contrary, we find these 

capabilities either fall within the 

telecommunications systems 

management exception or are separate 

offerings that are not inextricably 

integrated with broadband Internet 

access service, or both. 

366. DNS Falls Within the 

Telecommunications Systems 

Management Exception to the Definition 

of Information Services. As the Supreme 

Court spotlighted in Brand X, the 

Commission predicated its prior 

conclusion that cable modem service 

was an integrated information service at 

least in part on the view that it 

‘‘transmits data only in connection with 

the further processing of information.’’ 

That was so, under the theory of the 

Cable Modem Declaratory Ruling, 

because ‘‘[a] user cannot reach a thirdparty’s Web site without DNS, which 

(among other things) matches the Web 

site address the end user types into his 

browser (or ‘clicks’ on with his mouse) 

with the IP address of the Web page’s 

host server.’’ The Commission had 

assumed without analysis that DNS, 

when provided with Internet access 

service, is an information service. The 

Commission credited record evidence 

that DNS ‘‘enable[s] routing’’ and that 

‘‘[w]ithout this service, Internet access 

would be impractical for most users.’’ In 

his Brand X dissent, however, Justice 

Scalia correctly observed that DNS ‘‘is 

scarcely more than routing information, 

which is expressly excluded from the 

definition of ‘information service’ ’’ by 

the telecommunications systems 

management exception set out in the 

last clause of section 3(24) of the Act. 

(The definition of ‘‘information service’’ 

has since been moved from subsection 

20 to subsection 24 of section 3 but has 

not itself been revised. The 

telecommunications systems 

management exception in section 3(24) 

provides that the term ‘‘information 

service’’ ‘‘does not include’’ the use of 

any data processing, storage, retrieval or 

similar capabilities ‘‘for the 

management, control, or operation of a 

telecommunications system or the 

management of a telecommunications 

service.’’) Thus, in his view, such 

functions cannot be relied upon to 

convert what otherwise would be a 

telecommunications service into an 

information service. Therefore, 

consideration of whether DNS service 

falls within the telecommunications 

systems management exception could 

have been determinative in the Court’s 

outcome in Brand X, had it considered 

the question. 

367. Although the Commission 

assumed in the Cable Modem 

Declaratory Ruling—sub silentio—that 

DNS fell outside the 

telecommunications systems 

management exception, (The 

Commission’s subsequent conclusions 

that wireline broadband services offered 

by telephone companies and broadband 

offered over power lines were unitary 

information services followed the same 

theory, also without any analysis of the 

telecommunications systems 

management exception.) Justice Scalia’s 

assessment finds support both in the 

language of section 3(24), and in the 

Commission’s consistently held view 

that ‘‘adjunct-to-basic’’ functions fall 

within the telecommunications systems 

management exception to the 

‘‘information service’’ definition. 

(Throughout the history of computerbased communication, Title II covered 

more than just the simple transmission 

of data. Some features and services that 

met the literal definition of ‘‘enhanced 

service,’’ but did not alter the 

fundamental character of the associated 

basic transmission service, were 

considered ‘‘adjunct-to-basic’’ and 

treated as basic (i.e., 

telecommunications) services even 

though they went beyond mere 

transmission. Thus, the Commission’s 

definition of ‘‘basic services’’ (the 

regulatory predecessor to 

‘‘telecommunications services’’) 

includes, among other things, those 

intelligent features that run the network 

or improve its usefulness to consumers, 

such as a carrier’s use of ‘‘companding 

[compressing/expanding] techniques, 

bandwidth compression techniques, 

circuit switching, message or packet 

switching, error control techniques, etc. 

that facilitate economical, reliable 

movement of information does not alter 

the nature of the basic service.’’ Basic 

service can also include ‘‘memory or 

storage within the network . . . used 

only to facilitate the transmission of the 

information from the origination to its 

destination,’’) Such functions, the 

Commission has held: (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].’’ By 

established Commission precedent, they 

include ‘‘speed dialing, call forwarding, 

[and] computer-provided directory 

assistance,’’ each of which shares with 

DNS the essential characteristic of using 

computer processing to convert the 

number or keystroke that the end user 

enters into another number capable of 

routing the communication to the 


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intended recipient. Similarly, 

traditional voice telephone calls to toll 

free numbers, pay-per-call numbers, and 

ported telephone numbers require a 

database query to translate the dialed 

telephone number into a different 

telephone number and/or to otherwise 

determine how to route the call 

properly, and there is no doubt that the 

inclusion of that functionality does not 

somehow convert the basic 

telecommunications service offering 

into an information service. (Consider 

also the role that telephone operators 

traditionally played in routing 

telephone calls. Traditional telephony 

required a telephone operator to route 

and place calls requested by the 

customer. We do not believe that 

anyone would argue that such 

arrangements would turn traditional 

telephone service into an information 

service.) 

368. Citing language from a staff 

decision to the effect that adjunct-tobasic functions do not include functions 

that are ‘‘useful to end users, rather than 

carriers,’’ AT&T argues that DNS must 

fall outside of the telecommunications 

systems management exception because 

‘‘Internet access providers use DNS 

functionality not merely (or even 

primarily) to ‘manage’ their networks 

more efficiently, but to make the 

Internet as a whole easily accessible and 

convenient for their subscribers.’’ We 

disagree. The particular function at 

issue in the cited staff decision—the 

‘‘storage and retrieval of information 

that emergency service personnel use to 

respond to E911 calls’’—was not 

instrumental in placing calls or 

managing the communications network, 

but simply allowed certain 

telecommunications consumers (E911 

answering centers and first responders) 

to identify the physical location of the 

distressed caller in order to render 

assistance, a benefit to be sure, but one 

unrelated to telecommunications. By 

contrast, DNS—like the speed dialing, 

call forwarding, and computer-provided 

directory assistance functions that 

already have been definitively classified 

as falling within the 

telecommunications systems 

management exception to section 

3(24)—allows more efficient use of the 

telecommunications network by 

facilitating accurate and efficient 

routing from the end user to the 

receiving party. (Notwithstanding the 

close resemblance between DNS and 

these features that the Commission 

previously has found to be within the 

telecommunications systems 

management exception, USTelecom 

contends that ‘‘DNS does not manage or 

control a telecommunications system or 

a telecommunications service.’’ 

USTelecom Reply at 32. As with call 

forwarding, speed dialing, and 

computer-provided directory assistance, 

however, DNS manages the network in 

the sense of facilitating efficient routing 

and call completion. In any event, even 

if DNS were not viewed as facilitating 

network management, it clearly would 

fall within the exception as a capability 

used for the ‘‘operation of a 

telecommunications system.’’ 47 U.S.C. 

153(24). Responding to assertions in one 

of the dissenting statements, (Pai 

Dissent at 36 through 37), we expressly 

find this rationale applies equally to 

other services that arguably serve the 

interests of subscribers, such as, for 

example, caching. While these services 

do provide a benefit to subscribers in 

the form of faster, more efficient service, 

they also serve to manage the network 

by facilitating efficient retrieval of 

requested information, reducing a 

broadband provider’s costs in the 

provision of the service. In addition, 

caching and other services which 

provide a benefit to subscribers, like 

DNS, also serve as a capability used for 

the operation of a telecommunications 

system by enabling the efficient retrieval 

of information.) 

369. AT&T’s other arguments 

regarding DNS also fail. Contrary to its 

suggestion, the fact that the analogous 

speed dialing, call forwarding, and 

computer-provided directory assistance 

functions that the Commission has 

designated as falling within the 

telecommunications systems 

management exception were adjunct to 

‘‘legacy telephone (‘basic’) services’’ 

rather than to ‘‘Internet-based services’’ 

provides no basis to discard the logic of 

that analysis in the broadband context. 

Nor are we persuaded by AT&T’s 

observation that DNS systems provide 

additional ‘‘reverse look-up’’ functions 

(i.e., converting a numeric IP address 

into a domain name) that are ‘‘analogous 

to (though far more sophisticated than) 

‘reverse directory assistance’ ’’ services 

that were deemed to be enhanced 

services in the legacy circuit-switched 

telephone service environment. Even 

assuming, arguendo, that such ‘‘reverse 

look-up’’ functions were analogous, we 

do not believe that the inclusion of such 

functionality would convert what was 

otherwise a telecommunications service 

into an information service. As the 

Supreme Court recognized, an entity 

may not avoid Title II regulation of its 

telecommunications service simply by 

packaging that service with an 

information service. As the Court 

explained, ‘‘a telephone company that 

packages voice mail with telephone 

service offers a transparent transmission 

path—telephone service—that transmits 

information independent of the 

information-storage capabilities 

provided by voice mail. For instance, 

when a person makes a telephone call, 

his ability to convey and receive 

information using the call is only 

trivially affected by the additional 

voice-mail capability.’’ Likewise, we 

find that to the extent a DNS ‘‘reverse 

look-up’’ functionality is included with 

the offering of broadband Internet access 

service, the service itself—the 

transmission of data to and from all or 

substantially all Internet endpoints—is 

only trivially dependent on, if at all, the 

‘‘reverse look-up’’ function cited by 

AT&T. We find that this analysis applies 

equally to the DNS ‘‘assist capabilities’’ 

cited by AT&T, in which the provider’s 

DNS functionality may also be used 

occasionally to guess what a user meant 

when she mistyped an address. (In the 

context of voice telephone service, the 

Commission has recognized that the 

availability of reverse directory 

capability does not transform that 

service from a telecommunications 

service into an information service.) 

370. Although we find that DNS falls 

within the telecommunications systems 

management exception, even if did not, 

DNS functionality is not so inextricably 

intertwined with broadband Internet 

access service so as to convert the entire 

service offering into an information 

service. First, the record indicates that 

‘‘IP packet transfer does work just as 

well without DNS, but is simply less 

useful, just as a telephone system is less 

useful without a phone book.’’ Indeed, 

‘‘[t]here is little difference between DNS 

support offered by a broadband Internet 

access provider and the 411 directory 

service offered by many providers of 

telephone service. Both allow a user to 

discover how to reach another party, but 

no one argued that telephone companies 

were not providing a 

telecommunications service because 

they offered 411.’’ Second, the factual 

assumption that DNS lookup necessarily 

is provided by the broadband Internet 

access provider is no longer true today, 

if it ever was. While most users rely on 

their broadband providers to provide 

DNS lookup, the record indicates that 

third-party-provided-DNS is now 

widely available, (To be clear, we do not 

find that DNS is a telecommunications 

service (or part of one) when provided 

on a stand-alone basis by entities other 

than the provider of Internet access 

service. In such instances, there would 

be no telecommunications service to 

which DNS is adjunct, and the storage 


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functions associated with stand-alone 

DNS would likely render it an 

information service.) and the 

availability of the service from third 

parties cuts against a finding that 

Internet transmission and DNS are 

inextricably intertwined, whether or not 

they were at the time of the 

Commission’s earlier classification 

decisions. In any event, the fact that 

DNS may be offered by a provider of 

broadband Internet access service does 

not affect our conclusion that the 

telecommunications is offered directly 

to the public. 

371. Accordingly, we now reconsider 

our prior analysis and conclude for two 

reasons that the bundling of DNS by a 

provider of broadband Internet access 

service does not convert the broadband 

Internet access service offering into an 

integrated information service. (We also 

observe that add-on services to DNS, 

such as DNS security extensions, do not 

convert BIAS into an information 

service. DNS security extensions 

provide authentication that the 

messages sent between DNS servers, and 

between a DNS server and a DNS client, 

are not altered. As such, DNS security 

extensions facilitate accurate DNS 

information, and, like DNS itself, are 

incidental to BIAS, and do not alter the 

fundamental character of BIAS. We 

accordingly disagree with the contrary 

interpretation of the role of DNS 

security extensions described in one of 

the dissenting statements.) This is both 

because DNS falls within the 

telecommunications systems 

management exception to the definition 

of information service and because, 

regardless of its classification, it does 

not affect the fundamental nature of 

broadband Internet access service as a 

distinct offering of telecommunications. 

372. Caching Falls Within the 

Telecommunications Systems 

Management Exception. Opponents of 

revisiting the Commission’s earlier 

classification decisions also point to 

caching as another feature of broadband 

Internet access service packages that the 

Commission relied upon to find such 

packages to be information services. In 

the Cable Modem Declaratory Ruling, 

the Commission described caching as 

‘‘the storing of copies of content at 

locations in the network closer to 

subscribers than their original sources.’’ 

While the Commission noted the 

caching function in the Cable Modem 

Declaratory Ruling, it did not rely on the 

caching function (as opposed to the 

DNS capability) as a basis for its 

classification determination. (To the 

extent that Brand X can be read as 

reaching a different conclusion, we find 

the Court’s characterization of 

‘‘caching’’ as enabling ‘‘subscribers [to] 

reach third-party Web sites via the 

World Wide Web, and browse their 

contents, [only] because their service 

provider offers the capability for . . . 

acquiring, [storing] . . . retrieving [and] 

utilizing information’’ to be technically 

inaccurate.) When offered as part of a 

broadband Internet access service, 

caching, like DNS, is simply 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. 

(Caching is akin to a ‘‘store and forward 

technology [used] in routing messages 

through the network as part of a basic 

service.’’) Thus, it falls easily within the 

telecommunications systems 

management exception to the 

information service definition. We 

observe that this caching function 

provided by broadband providers as 

part of a broadband Internet service, is 

distinct from third party caching 

services provided by parties other than 

the provider of Internet access service 

(including content delivery networks, 

such as Akamai), which are separate 

information services. (Third party 

‘‘content delivery networks’’ provide 

extensive caching services. See Akamai 

Comments at 3 (explaining that it 

deploys its technologies deep in the 

networks of last-mile broadband 

Internet providers and caches content 

locally, and stating that it has deployed 

approximately 150,000 servers in 

thousands of locations inside over 1,200 

global networks located in over 650 

cities and 92 countries)) 

373. Other Features Within the 

Telecommunications Systems 

Management Exception. Opponents 

raise, as well, a variety of new networkoriented, security-related computer 

processing capabilities that are used to 

address broader threats to their 

broadband networks and customers, 

including the processing of Internet 

traffic to check for worms and viruses 

and features that block access to certain 

Web sites. They claim that, as with 

DNS, a consumer cannot utilize the 

service without also receiving many of 

these security mechanisms. Whether or 

not a consumer necessarily must utilize 

security-related blocking functions 

when using a provider’s broadband 

Internet access service, we find that, like 

DNS and caching, such capabilities 

provide telecommunications systems 

management functions that do not 

transform what otherwise would be a 

telecommunications service into an 

information service. Some security 

functions, e.g., blocking denial of 

service attacks, fall within the 

telecommunications systems 

management exception because they are 

used exclusively for the management, 

control, or operation of the 

telecommunications system. Many such 

network security functions are analogs 

of outbound and inbound ‘‘call 

blocking’’ services, such as those 

blocking calls to 900 and 976 numbers 

and those blocking calls from 

telemarketers, that have always been 

considered adjunct-to-basic with respect 

to voice telephony. Other security 

functions—firewalls and parental 

controls, for example—either fall within 

the telecommunications systems 

management exception because they are 

used exclusively for management of the 

telecommunication service or are 

separable information services that are 

offered by providers other than 

providers of broadband Internet access 

service. Such security features simply 

filter out unwanted traffic, and do not 

alter the fundamental character of the 

underlying telecommunications service 

offered to users. All of these functions 

ensure that users can use other Internet 

applications and services without 

worrying about interference from third 

parties. 

374. CTIA contends that the 

integration between transmission and 

processing that characterizes mobile 

broadband Internet access service 

requires that it be classified as an 

information service, and notes that such 

integration is essential ‘‘whether a user 

is browsing a Web site, engaged in 

mobile video conferencing, or 

undertaking any of the myriad other 

activities made possible by mobile 

broadband.’’ We find that that, rather 

than transforming what otherwise 

would be a telecommunications service 

into an information service, the 

functions CTIA describes fall within the 

telecommunications management 

exception because they serve to 

facilitate the transmission of 

information and allow mobile 

subscribers to make use of other Internet 

applications and services. Other 

commenters contend that broadband 

providers’ assignment of Internet 

Protocol (IP) addresses is also an 

information service that renders 

broadband Internet access service an 

information service. We disagree. IP 

address assignment is akin to telephone 

number assignment, making a user’s 

computer locatable by other users on the 

network. Thus, this function serves to 

enable the transmission of information 

for the use of other services. The fact 

that the end user’s equipment must 

periodically obtain an IP address from 


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the broadband provider’s server does 

not change the fundamental purpose of 

the service. It is analogous to adjunct-tobasic services that the Commission has 

held fall squarely within the 

telecommunications systems 

management exception. 

375. Finally, Comcast asserts that 

‘‘with the rise of IPv6 as the eventual 

replacement for IPv4 as the protocol for 

identifying and routing Internet content, 

Comcast and other [providers] also now 

provide the functionality necessary to 

transform an IPv4 address into an IPv6 

address (and vice versa),’’ a ‘‘processing 

function’’ it claims is ‘‘part and parcel 

of broadband Internet access service.’’ 

We conclude that, as with DNS 

functions, the IP conversion 

functionality is akin to traditional 

adjunct-to-basic services, which fall 

under the telecommunications systems 

management exception. As discussed 

above, such functions must be 

‘‘incidental’’ to an underlying 

telecommunications service, and must 

not alter the fundamental character of 

the telecommunications service. We 

find that the conversion of IPv4 to IPv6 

and vice versa does not alter the 

information being transmitted, but 

rather enables the transmission of the 

information, analogous to traditional 

voice telephone calls to toll free 

numbers, pay-per-call numbers, and 

ported telephone numbers that require a 

database query to translate the dialed 

telephone number into a different 

telephone number and/or to otherwise 

determine how to route the call 

properly. As with these traditional 

services, the inclusion of this 

functionality does not somehow convert 

the basic telecommunications service 

offering into an information service. 

376. Broadband Internet Access 

Service Is Not Inextricably Intertwined 

With Add-On Information Services. 

Some commenters contend that 

broadband Internet access service must 

be a functionally integrated information 

service because it is offered in 

conjunction with information services, 

such as cloud-based storage services, 

email, and spam protection. We find 

that such services are not inextricably 

intertwined with broadband 

transmission service, but rather are a 

‘‘product of the [provider’s] marketing 

decision not to offer the two 

separately.’’ The transmission service 

provided by broadband providers is 

functionally distinguishable from the 

Internet application add-ons they 

provide. Service providers cannot avoid 

the scope of Title II merely by bundling 

broadband Internet access service with 

information services. As the Supreme 

Court majority in Brand X recognized, 

citing the Stevens Report, ‘‘a company 

‘cannot escape Title II regulation’ ’’ of a 

telecommunications service ‘‘‘simply by 

packaging that service with voice mail’ ’’ 

or similar information services. 

377. We find that these services 

identified in the record—email, cloudbased storage, and spam protection—are 

separable information services. We 

conclude that email accounts and cloudbased storage provided along with 

broadband Internet access services are 

akin to voicemail services offered along 

with traditional telephone service. As 

the Court found, ‘‘a telephone company 

that packages voice mail with telephone 

service offers a transparent transmission 

path—telephone service—that transmits 

information independent of the 

information-storage capabilities 

provided by voicemail . . . . [W]hen a 

person makes a telephone call, his 

ability to convey and receive 

information using the call is only 

trivially affected by the additional 

voice-mail capability.’’ Likewise, the 

broadband Internet access service that 

consumers purchase is only trivially 

affected, if at all, by the email and 

cloud-based storage functionalities that 

broadband providers may offer with 

broadband Internet access service. 

Finally, security functions such as spam 

blocking are add-ons to separable 

information services such as email, and 

are themselves separable information 

services. 

378. It is also notable that engineers 

view the Internet in terms of network 

‘‘layers’’ that perform distinct functions. 

Each network layer provides services to 

the layer above it. Thus the lower layers, 

including those that provide 

transmission and routing of packets, do 

not rely on the services provided by the 

higher layers. In particular, the 

transmission of information of a user’s 

choosing (which is a service offered by 

lower layers) does not depend on addon information services such as cloudbased storage services, email, or spam 

protection (which are services offered at 

the application layer). Also, application 

layer services that fall within the 

telecommunications management 

exception (e.g., DNS, caching, or 

security services offered as part of 

broadband Internet access service) 

similarly do not depend on add-on 

information services. As such, add-on 

information services are separated from 

the functions, like DNS, that facilitate 

transmission, and are not ‘‘inextricably 

intertwined’’ with broadband Internet 

access services. 

379. Other recent developments also 

show that consumers’ use of today’s 

Internet to access content and 

applications is not inextricably 

intertwined with the underlying 

transmission component. For instance, 

consumers are increasingly accessing 

content and applications on the Internet 

using Wi-Fi-only devices that take 

advantage of Wi-Fi hotspots not 

provided by the consumer’s underlying 

broadband service provider. Similarly, 

consumers can sometimes use Wi-Fienabled smartphones not only to access 

the Internet via their service provider’s 

mobile broadband network or Wi-Fi 

hotspots, but also using Wi-Fi hotspots 

offered by premises operators. Further, 

many consumers purchase content that 

can be accessed over any of a number 

of different transmission paths and 

devices over the Internet—for example, 

video over a fixed broadband 

connection to a flat-screen television, or 

over a Wi-Fi router connected to a fixed 

broadband connection to a tablet, or 

over a mobile broadband network to a 

smartphone. 

380. In addition, countless third 

parties are now embedding electronics, 

software, sensors, and other forms of 

connectivity into a wide variety of 

everyday devices, such as wearables, 

appliances, thermostats, and parking 

meters that rely on Internet connectivity 

to provide value to the American 

consumer, including through mHealth, 

Smart Grid, connected education, and 

other initiatives. The growth of the 

Internet of Things is yet another clear 

indication that devices and services that 

consumers use with today’s Internet are 

not inextricably intertwined with the 

underlying transmission component. 

381. Finally, we observe that the 

Commission itself recognized in 2005 

that the ‘‘link’’ between the 

transmission element of broadband 

Internet access service and the 

information service was not 

inextricable. Specifically, the 2005 

Wireline Broadband Classification 

Order granted wireline broadband 

providers the option of offering the 

transmission component of broadband 

Internet access as a distinct common 

carrier service under Title II on a 

permissive basis, and a large number of 

rural carriers have exercised this option 

for nearly a decade. As NTCA explains, 

‘‘[t]he fact that the Commission 

recognized as far back as 2005 that the 

transmission component could be 

separated out, and the fact that it has 

been separated out and offered 

separately on a tariffed basis by a large 

number of carriers undercuts any 

argument’’ that the transmission service 

and the services that ride atop that 

service are inextricably intertwined. 

Further, the 2007 Wireless Broadband 

Classification Order permitted providers 

of mobile broadband Internet access 


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service to offer the ‘‘transmission 

component [of wireless broadband 

Internet access service] as a 

telecommunications service. 

d. Opponents’ Remaining Challenges 

Are Insubstantial 

382. Some commenters contend that 

our ruling is contrary to a Congressional 

intent for keeping the Internet 

unregulated. We are not, however, 

regulating the Internet, per se, or any 

Internet applications or content. Rather, 

our reclassification of broadband 

Internet access service involves only the 

transmission component of Internet 

access service. As the D.C. Circuit has 

explained, ‘‘Congress did not choose 

between’’ competing ‘‘market-based’’ 

and ‘‘common-carrier, equal access’’ 

philosophies for broadband regulation; 

rather, ‘‘the FCC possesses significant, 

albeit not unfettered, authority and 

discretion to settle on the best 

regulatory or deregulatory approach to 

broadband—a statutory reality that 

assumes great importance when parties 

implore courts to overrule FCC 

decisions on this topic.’’ We recognize 

that the Commission’s previous 

classification decisions concluded that 

classifying broadband Internet access 

service as an information service would 

‘‘establish a minimal regulatory 

environment’’ that would promote the 

Commission’s goal of ‘‘ubiquitous 

availability of broadband to all 

Americans.’’ We do not today abandon 

that goal but instead seek to promote it 

through a ‘‘light-touch’’ regulatory 

framework for broadband Internet 

access services under Title II. As noted 

earlier, there will be no rate regulation, 

no unbundling of last-mile facilities, no 

tariffing, and a carefully tailored 

application of only those Title II 

provisions found to directly further the 

public interest in an open Internet. 

383. Several commenters argue that 

we should rely exclusively on industry 

self-regulation to promote the policies 

discussed above. While we applaud 

voluntary industry initiatives, we find 

the self-regulation option to be lacking 

in a number of respects. First, for the 

reasons discussed in our forbearance 

analysis in section IV, we find that 

applying the few provisions in Title II 

necessary to implement the policy 

objectives identified above is in the 

public interest. We conclude that in the 

absence of credible Commission 

authority to step in when necessary in 

the public interest, voluntary measures 

will prove inadequate. Second, even the 

best-intentioned voluntary regulation 

initiatives are more likely to protect 

consumers when there is an expert 

agency that can provide a backstop to 

inadequate industry action that may 

result from collective action or 

coordination problems beyond any 

single firm’s control. 

384. Other commenters argue that 

classifying broadband Internet access 

service as a telecommunications service 

would impermissibly compel providers 

of broadband Internet access service to 

operate as common carriers. This 

argument misconstrues the nature of our 

ruling. Our decision to classify 

broadband Internet access service as a 

telecommunications service subject to 

the requirements of Title II derives from 

the characteristics of this service as it 

exists and is offered today. We do not 

‘‘require’’ that any service ‘‘be offered 

on a common carriage basis,’’ but rather 

identify an existing service that is 

appropriately offered on a common 

carriage basis ‘‘by virtue of its 

functions,’’ as explained in detail above. 

Our classification decision is easily 

distinguished from the rules struck 

down in Midwest Video II, as those rules 

impermissibly attached common carrier 

obligations to services the Commission 

plainly lacked statutory authority to 

regulate in this manner. Congress has 

not spoken directly to the regulatory 

treatment of broadband Internet access 

services. Our classification of these 

services as telecommunications services 

is a permissible exercise of our 

delegated authority, one which we have 

adequately justified and defended based 

on the record before us. Because we 

have appropriately classified these 

services as telecommunications 

services, we do not run afoul of the 

Act’s provision that a 

‘‘telecommunications carrier shall be 

treated as a common carrier under this 

Act only to the extent that it is engaged 

in providing telecommunications 

services.’’ We thus reject the argument 

that our ruling impermissibly compels 

common carriage. 

385. Commenters also argue that the 

classification of broadband Internet 

access service as a telecommunications 

service results in this service being 

classified as both a telecommunications 

service and an information service, in 

violation of Congressional intent. We 

agree with commenters that these are 

best construed as mutually exclusive 

categories, and our classification ruling 

appropriately keeps them distinct. In 

classifying broadband Internet access 

service as a telecommunications service, 

we conclude that this service is not a 

functionally integrated information 

service consisting of a 

telecommunications component 

‘‘inextricably intertwined’’ with 

information service components. Rather, 

we conclude, for the reasons explained 

above, that broadband Internet access 

service as it is offered and provided 

today is a distinct offering of 

telecommunications and that it is not an 

information service. As further 

explained above, any functional 

integration of DNS or caching with 

broadband Internet access service does 

not disrupt this classification, as both of 

those functions fall within the 

‘‘telecommunications systems 

management exception’’ to the 

definition of an information service. Nor 

does the mere ‘‘packaging’’ of 

information services such as email with 

broadband Internet access service 

convert the latter into an information 

service. Our classification of broadband 

Internet access service therefore does 

not create any definitional 

inconsistency. 

386. We also reject the argument that 

the classification of broadband Internet 

access service as an information service 

is implicit in the definition of 

‘‘interactive computer service’’ set forth 

in section 230 of the Communications 

Act, a provision focused on the blocking 

and screening of offensive material. We 

find it unlikely that Congress would 

attempt to settle the regulatory status of 

broadband Internet access services in 

such an oblique and indirect manner, 

especially given the opportunity to do 

so when it adopted the 

Telecommunications Act of 1996. At 

any rate, the definition does not 

expressly classify broadband Internet 

access service, as we define that term 

herein, as an information service. (For 

one thing, the phrase ‘‘any information 

service, system or access software 

provider’’, see 47 U.S.C. 230 (f), may be 

broader in scope than the term 

‘‘information service’’ as defined in 

section 3 of Act. To read the text 

otherwise would suggest that Congress 

intended the liability protections of 

section 230 to apply narrowly, 

excluding, for example, local exchange 

carriers that offered DSL, which as 

noted above was classified as a 

telecommunications service until 2005.) 

We therefore find no basis in section 

230 for reconsidering our judgment that 

this service is properly understood to be 

a telecommunications service, for the 

reasons explained above. 

387. Finally, we disagree with the 

suggestion that our decision to 

‘‘reclassify, to forbear, and to adopt 

rules grounded in Title II’’ is not a 

‘‘logical outgrowth’’ of the 2014 Open 

Internet NPRM. The approach we adopt 

today is more than a logical outgrowth 

of the NPRM; it is one that the NPRM 

expressly identified as an alternative 

course of action. It is one on which the 

Commission sought comment in almost 


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every section of the NPRM. (Thus, at the 

very outset, in addition to ‘‘the [section 

706] blueprint offered by the D.C. 

Circuit’’ on which the dissent now seeks 

to focus, Pai Dissent at 16–19, the 

Commission made clear that in looking 

for the ‘‘best approach to protecting and 

promoting Internet openness,’’ it ‘‘will 

seriously consider the use of Title II,’’ 

‘‘seeks comment on the benefits of both 

. . ., including the benefits of one 

approach over the other,’’ and 

‘‘emphasize[s] . . . that the Commission 

recognizes that both section 706 and 

Title II are viable solutions and seek[s] 

comment on their potential use.’’ The 

NPRM in this proceeding is thus 

nothing like the NPRM that was at issue 

in Prometheus. Prometheus Radio 

Project v. FCC, 652 F.3d 431 (3rd Cir. 

2011). We also note that, under the 

APA, notice-and-comment rulemaking 

requirements apply only to the extent 

that we herein adopt legislative rules. 

5 U.S.C. 553(b)(A), 553(d)(2).) It is one 

that several broadband Internet access 

service providers vigorously opposed in 

their comments in light of their own 

reading of the NPRM. (Dissents to the 

NPRM likewise reflect that this 

approach was on the table. See 2014 

Open Internet NPRM, 29 FCC Rcd at 

5653–55 (dissenting Statement of 

Commissioner Pai) (recognizing ‘‘[i]t’s 

not news that people of good faith 

disagree’’ on the right approach, stating 

that ‘‘[s]ome would like to regulate 

broadband providers as utilities under 

Title II,’’ and discussing the scope of 

Title II’s ‘‘unjust or unreasonable 

discrimination’’ requirement, the 

consequences of reclassification under 

Title II, and the alleged regulatory 

uncertainties posed under either section 

706 ‘‘or Title II’’). Dissents to the NPRM 

likewise reflect that this approach was 

on the table. See 2014 Open Internet 

NPRM, 29 FCC Rcd at 5653 through 55 

(dissenting Statement of Commissioner 

Pai) (recognizing ‘‘[i]t’s not news that 

people of good faith disagree’’ on the 

right approach, stating that ‘‘[s]ome 

would like to regulate broadband 

providers as utilities under Title II,’’ and 

discussing the scope of Title II’s ‘‘unjust 

or unreasonable discrimination’’ 

requirement, the consequences of 

reclassification under Title II, and the 

alleged regulatory uncertainties posed 

under either section 706 ‘‘or Title II’’).) 

4. Mobile Broadband Internet Access 

Service Is Commercial Mobile Service 

388. As outlined above, we conclude 

that broadband Internet access service, 

whether provided by fixed or mobile 

providers, is a telecommunications 

service. We also find that mobile 

broadband Internet access service is a 

commercial mobile service. In any 

event, however, even if that service falls 

outside the definition of ‘‘commercial 

mobile service,’’ we find that it is the 

functional equivalent of a commercial 

mobile service and, thus, not a private 

mobile service. 

389. Congress adopted the 

commercial mobile service provisions in 

the Act with the goal of creating 

regulatory symmetry among similar 

mobile services. Section 332(d)(1) of the 

Communications 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.’’ We find 

that mobile broadband Internet access 

service meets this definition. First, we 

find that mobile broadband Internet 

access service is a ‘‘mobile service’’ 

because subscribers access the service 

through their mobile devices. Next, we 

find that mobile broadband Internet 

access service is provided ‘‘for profit’’ 

because service providers offer it to 

subscribers with the intent of receiving 

compensation. We also conclude the 

mobile broadband Internet access 

services are widely available to the 

public, without restriction on who may 

receive them. 

390. Finally, we conclude that mobile 

broadband Internet access service 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) . . . .’’ The Commission 

has defined ‘‘interconnected service’’ as 

a service ‘‘that gives subscribers the 

capability to communicate to or receive 

communication from all other users on 

the public switched network.’’ The 

Commission has defined the term 

‘‘public switched network’’ to mean 

‘‘[a]ny 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 in 

connection with the provision of 

switched services.’’ 

391. While mobile broadband Internet 

access service does not use the North 

American Numbering Plan, we conclude 

for the reasons set out below that we 

should update our definition of public 

switched network pursuant to the 

authority granted to the Commission in 

section 332 so that our definition 

reflects the current network landscape 

rather than that existing more than 20 

years ago. In its Order defining the 

terms ‘‘interconnected’’ and ‘‘public 

switched network’’ the Commission 

concluded that the term ‘‘public 

switched network’’ should not be 

defined in a static way, recognizing that 

the network is continuously growing 

and changing because of new 

technology and increasing demand. The 

purpose of the public switched network, 

the Commission noted, is ‘‘to allow the 

public to send or receive messages to or 

from anywhere in the nation.’’ This 

quality of ‘‘ubiquitous access,’’ for 

which the NANP was viewed as a proxy 

in 1994, was consistent with the key 

distinction underlying the formulation 

of the CMRS definition by Congress— 

differentiating the emerging cellularbased technology for ‘‘commercial’’ 

SMR service being deployed by Nextel’s 

predecessor as a mass market service 

from the traditional ‘‘private’’ SMR 

dispatch services employed by taxi 

services and other private fleets. Today, 

consistent with our authority under the 

Act, and with the Commission’s 

previous recognition that the ‘‘public 

switched network’’ will grow and 

change over time, we update the 

definition of public switched network to 

reflect current technology. Specifically, 

we revise the definition of ‘‘public 

switched network’’ 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.’’ 

This definition reflects the emergence 

and growth of packet switched Internet 

Protocol-based networks. Revising the 

definition of public switched network to 

include networks that use standardized 

addressing identifiers other than NANP 

numbers for routing of packets 

recognizes that today’s broadband 

Internet access networks use their own 

unique addressing identifier, IP 

addresses, to give users a universally 

recognized format for sending and 

receiving messages across the country 

and worldwide. (This definitional 

change to our regulations in no way 

asserts Commission jurisdiction over the 

assignment or management of IP 

addressing by the Internet Numbers 

Registry System.) We find that mobile 

broadband Internet access service is 

interconnected with the ‘‘public 

switched network’’ as we define it today 

and is therefore an interconnected 

service. 


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Some commenters contend that the 

Commission is barred from taking any 

actions that would change the definition of 

‘‘public switched network.’’ CTIA, for 

example, argues that a revision to the 

definition of ‘‘public switched network’’ is 

‘‘beyond the scope of this rulemaking’’ 

because the 2014 Open Internet NPRM ‘‘only 

asks whether mobile broadband falls within 

the definition of CMRS and does not propose 

any changes to the well-established 

definitions in section 20.3 of the FCC’s 

rules.’’ AT&T similarly argues that the 

Commission has not provided sufficient 

public notice. CTIA also argues that, even if 

there were notice, the Commission could not 

interpret the definition of ‘‘public switched 

network’’ to include the Internet, stating that 

‘‘[w]hile section 332 directs the Commission 

to define ‘public switched network’ by 

regulation, that definition must be consistent 

with the statutory text and congressional 

intent. Here, whatever limited discretion the 

Commission has as to that definition, it 

cannot be interpreted broadly enough to 

cover the broadband Internet.’’ Verizon 

agrees that the NPRM did not provide notice 

that the Commission might change its 

regulations or their interpretation. In 

addition, Verizon argues that, although the 

Commission is statutorily authorized to 

define ‘‘public switched network,’’ the 

definition must still be consistent with the 

statutory text and congressional intent. 

Accordingly, Verizon contends, ‘‘no matter 

how the Commission may redefine the 

‘public switched network’ any new definition 

still would need to be anchored to the public 

switched telephone networks, which is what 

section 332 was designed to address.’’ 

392. Contrary to these arguments, we 

find that revising the definition of 

‘‘public switched network’’ and 

classifying mobile broadband Internet 

access service as a commercial mobile 

service is a logical outgrowth of the 

proposals in the 2014 Open Internet 

NPRM. As discussed above, in the 

NPRM, the Commission proposed 

relying on section 706 of the 

Telecommunications Act of 1996 for 

legal authority to adopt rules to protect 

the open Internet but indicated that it 

would also seriously consider the use of 

Title II of the Communications Act as a 

basis for legal authority. The 

Commission sought comment on 

whether, in the event that it decided to 

reclassify broadband Internet access 

service under Title II, mobile broadband 

Internet access service would fit within 

the definition of ‘‘commercial mobile 

service’’ under section 332 of the Act 

and the Commission’s rules 

implementing that section. In addition, 

the NPRM noted that the Commission’s 

Broadband Classification NOI also 

asked whether the Commission should 

revisit its classification of wireless 

broadband Internet access services, 

noted that the NOI docket ‘‘remains 

open,’’ and directed that the record be 

refreshed in that proceeding ‘‘including 

the inquiries contained herein.’’ In the 

Broadband Classification NOI, the 

Commission sought comment on ‘‘legal 

issues specific to . . . wireless services 

that bear on their appropriate 

classification.’’ More specifically, it 

asked ‘‘which of the three legal 

frameworks’’ described therein (which 

included a Title II approach) ‘‘would 

best support the Commission’s policy 

goals for wireless broadband.’’ In 

particular, it asked ‘‘[t]o what extent 

should section 332 of the Act affect our 

classification of wireless broadband 

Internet services?’’ In the 2014 Open 

Internet NPRM, the Commission also 

noted that section 332 requires that 

wireless services that meet the 

definition of commercial mobile 

services be regulated as common 

carriers under Title II. The NPRM also 

asked about the extent to which 

forbearance should apply, if the 

Commission were to classify mobile 

broadband Internet access service as a 

CMRS service subject to Title II, and 

noted that the Broadband Classification 

NOI also asked whether the Commission 

could and should apply section 

332(c)(1) as well as section 10 in its 

forbearance analysis for mobile services. 

The 2014 Open Internet NPRM also 

sought comment on defining mobile 

broadband Internet access service and 

on application of Internet openness 

requirements to mobile broadband 

services. 

393. We find that our decision today 

to classify mobile broadband Internet 

access service as both a 

telecommunications service under Title 

II and CMRS is a logical outgrowth of 

these discussions and requests for 

comments. The discussion and 

questions posed in the 2014 Open 

Internet NPRM gave clear notice that the 

Commission was considering whether to 

reclassify mobile broadband Internet 

access under Title II as a 

telecommunications service and 

whether mobile broadband Internet 

access service would fit within the 

definition of ‘‘commercial mobile 

service’’ under the Act and the 

Commission’s rules, including whether 

mobile broadband would meet the 

‘‘interconnected service’’ component of 

the commercial mobile service 

definition. It was ‘‘reasonably 

foreseeable’’ that in answering that 

question the Commission would explore 

the scope of that component of the 

definition. Stated another way, 

‘‘interested parties should have 

anticipated that the change [in that 

definition] was possible, and thus 

reasonably should have filed their 

comments on the subject during the 

notice-and-comment period.’’ While we 

think this proposition is clear from the 

questions posed by the 2014 Open 

Internet NPRM, we further note that in 

this case mobile broadband providers 

‘‘themselves had no problem 

understanding the scope of the issues 

up for consideration; several . . . 

submitted comments’’ on the issue. 

And, other parties commented that the 

Commission should update its 

definition of the term ‘‘public switched 

network.’’ Moreover, as referenced 

above, evidence in the record shows 

that a number of parties have directly 

addressed the application of section 

332(d) and the Commission’s 

implementing rules to mobile 

broadband Internet access and thus have 

been aware that the Commission was 

considering taking action to update the 

definition of ‘‘public switched network’’ 

and reclassify mobile broadband 

Internet access as commercial mobile 

service. 

394. We also disagree with arguments 

that we are barred from updating the 

definition of public switched network to 

include networks that use addressing 

identifiers beyond NANP numbers 

associated with traditional telephone 

networks. CTIA, Verizon, and AT&T 

argue that the history of the legislation 

that defined ‘‘commercial mobile 

service’’ indicates that Congress 

intended the term ‘‘public switched 

network’’ to mean the ‘‘public switched 

telephone network.’’ CTIA, for example, 

argues that when Congress used the 

term ‘‘public switched network’’ in 

1993, ‘‘it did so knowing that the 

Commission and the courts routinely 

used that term interchangeably with 

‘public switched telephone network’ ’’ 

and that ‘‘[i]t is axiomatic that, when 

Congress ‘borrows’ a term of art that has 

been given meaning by the courts or the 

relevant agency, it ‘intended [that term] 

to have its established meaning.’ ’’ It 

argues also that ‘‘the Conference Report 

accompanying the legislation confirms 

that, although Congress used the term 

‘public switched network,’ it viewed 

that term as synonymous with ‘the 

[p]ublic switched telephone network.’ ’’ 

AT&T notes that Congress ‘‘used the 

term ‘the public switched network’ ’’ 

and that ‘‘Congress’s use of the definite 

article ‘the’ and the singular ‘network’ 

makes clear that it was referring to a 

single ‘public switched network’ ’’ The 

parties also argue that the text of the 

FirstNet public safety legislation 

supports their argument because it 

distinguishes between the ‘‘public 

switched network’’ and the ‘‘public 

Internet. AT&T contends also that the 

text of section 230 supports its views. 


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395. We agree with other commenters 

that these arguments do not give 

sufficient weight to Congressional intent 

as reflected in the text of the statute 

itself. As noted above, section 332(d)(2) 

of the Act uses the term ‘‘public 

switched network’’ rather than ‘‘public 

switched telephone network.’’ 

Moreover, as CTIA, Verizon, and AT&T 

acknowledge, the statute expressly 

delegates authority to the Commission 

to define the term ‘‘public switched 

network.’’ While we agree with CTIA 

that the delegation of authority does not 

provide boundless discretion, we find 

that what is clear from the statutory 

language is not what the definition of 

‘‘public switched network’’ was 

intended to cover but rather that 

Congress expected the notion to evolve 

and therefore charged the Commission 

with the continuing obligation to define 

it. In short, by defining such terms by 

reference to the way they ‘‘are defined 

by regulation by the Commission,’’ 

Congress expressly delegated this policy 

judgment to the Commission. As noted 

above, in defining the terms 

‘‘interconnected service’’ and ‘‘public 

switched network,’’ the Commission 

concluded that the term ‘‘public 

switched network’’ should not be 

defined in a static way and recognized 

that the network is continuously 

growing and changing because of new 

technology and increasing demand. The 

Commission expressly rejected calls in 

1994 to define the public switched 

network as the ‘‘public switched 

telephone network’’ finding that a 

broader definition was consistent with 

Congress’s decision to use the term 

‘‘public switched network,’’ rather 

‘‘than the more technologically based 

term ‘public switched telephone 

network.’ ’’ (Contrary to one of the 

dissenting statements, (Pai Dissent at 

46–47 & n.337), the Commission made 

clear it was not limiting the term 

‘‘public switched network’’ to the 

traditional network. First, as noted 

above, it rejected that view in favor of 

the position of other commenters that 

‘‘the network should not be defined in 

a static way,’’ an interpretation it found 

more consistent with the determination 

by Congress not to employ the term 

‘‘public switched telephone network.’’ 

Second, it stated that any switched 

common carrier service that is 

interconnected with the traditional local 

or interexchange switched network 

would be defined ‘‘as part of’’ the public 

switched network ‘‘for purposes of our 

definition,’’ Second CMRS Report and 

Order, 9 FCC Rcd at 1436 through 1437, 

59 FR 18493, Apr. 19, 1994. Even as 

early as 1994, the comments on which 

the Commission relied for its definition, 

id. at 1437, para. 60, made this very 

point. Comments of other wireless 

providers, with whom the Commission 

agreed about avoiding ‘‘a static way’’ of 

defining the network, id. at 1436, para. 

59, made the same point.) Today, we 

build upon this analysis and update our 

definition of ‘‘public switched network’’ 

to reflect changes in technology. 

Reflecting the foregoing changes in 

technology and telecommunications 

infrastructure, our definition 

contemplates a single network 

comprised of all users of public IP 

addresses and NANP numbers, and not 

two separate networks as AT&T argues. 

We find that this action is consistent 

both with the text of the statute and 

Congressional intent. (We are not 

persuaded by AT&T’s arguments that 

rely, not on the foregoing language or 

purpose of the 1993 statute at issue, but 

on subsequent statutes enacted for 

different purposes in 1996 and 2012. 

Quite apart from canons of statutory 

construction, this argument disregards 

the signal difference in section 332(d), 

which delegates the question of the 

scope of its terms to the Commission in 

light of its experience and market 

developments over time. We note, 

however, that AT&T’s reliance on the 

‘‘policy’’ of the 1996 Act reflected in 

section 230 is similar to one that 

Verizon made but that was not found by 

the Verizon court to be a bar to its 

conclusion that ‘‘section 706 grants the 

Commission authority to promote 

broadband deployment by regulating 

how broadband providers treat edge 

providers.’’) 

396. We recognize that, in the 2007 

Wireless Broadband Classification 

Order, the Commission previously 

concluded that section 332—‘‘as 

implemented by the Commission’s 

CMRS rules’’—did not contemplate 

wireless broadband Internet access 

service ‘‘as provided today,’’ citing the 

Second CMRS Report and Order’s 

finding that ‘‘ ‘commercial mobile 

service’ must still be interconnected 

with the local exchange or 

interexchange switched network as it 

evolves.’’ The Commission also found 

that mobile broadband Internet access 

was not an ‘‘interconnected service’’ 

based on its reading of the 

Commission’s existing rule, because the 

service did not provide its users with 

the capability to reach all other users of 

the public switched network. In 

addition, in 2011, in its order adopting 

data roaming requirements, the 

Commission defined services subject to 

the data roaming rule as services that 

are not interconnected with the public 

switched network. (The Commission 

defined ‘‘commercial mobile data 

service’’ which is subject to the data 

roaming rule as ‘‘any mobile data 

service that is not interconnected with 

the public switched network.’’ 

Opponents of reclassifying mobile 

broadband Internet access services have 

argued that the D.C. Circuit’s decisions 

on data roaming and on the 2010 Open 

Internet Order bar the Commission from 

reclassifying mobile broadband Internet 

access as commercial mobile service. 

First, we note that the issue of revising 

the Commission’s definitions was 

neither raised nor discussed in the data 

roaming or open Internet decisions. 

Moreover, contrary to these arguments, 

we find that the Court’s acceptance of 

the Commission’s previous decisions 

based on its existing definitions does 

not preclude the Commission from 

revisiting and revising its definitions, as 

expressly permitted by the language of 

section 332. We note that if a mobile 

service is not interconnected to the 

public switched network (as updated 

herein) and otherwise meets the 

definition of ‘‘commercial mobile data 

service’’ in section 20.3 of the 

Commission’s rules, it will continue to 

be subject to the data roaming rules.) 

However, the 2007 Wireless Broadband 

Classification Order (on which the 2011 

Data Roaming Order also relied) was 

premised both on its view of the service 

‘‘as provided today’’ and on ‘‘an internal 

contradiction’’ that a finding that 

wireless broadband Internet access was 

a commercial mobile would have 

caused with the finding that it was an 

‘‘information service.’’ Moreover, in 

neither instance did the Commission 

consider whether it should revise the 

definition of ‘‘public switched 

network,’’ on which its conclusion in 

the 2007 Wireless Broadband 

Classification Order was premised. 

397. Today, we update the definition 

of ‘‘public switched network’’ to reflect 

current technology and conclude that 

mobile broadband Internet access is an 

interconnected service. First, as 

outlined above, we find that mobile 

broadband is an ‘‘interconnected 

service’’ because it interconnects with 

‘‘public switched network’’ as we define 

it today. We find also that mobile 

broadband is an interconnected service 

because it gives its users the capability 

to send and receive communications 

from all other users of the Internet. In 

defining the term ‘‘interconnected 

service’’ in the Second CMRS Report 

and Order, the Commission indicated 

its belief that, by using the term 

‘‘interconnected service,’’ Congress 

intended to focus on whether mobile 


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services ‘‘make interconnected service 

broadly available through their use of 

the public switched network.’’ In 

addition, the Commission noted that 

Congress’s purpose was to ‘‘ensure that 

a mobile service that gives its customers 

the capability to communicate or to 

receive communications from other 

users of the public switched network 

should be treated as a common carriage 

offering.’’ This was by contrast with the 

alternative ‘‘private mobile service’’ 

classification, which by statute includes 

services not ‘‘effectively available to a 

substantial portion of the public.’’ 

Mobile broadband Internet access 

service fits the former classification as 

millions of subscribers use it to send 

and receive communications on their 

mobile devices every day. In sharp 

contrast to 2007 when the Commission 

characterized mobile broadband Internet 

access services as being in a nascent 

stage, today the mobile broadband 

marketplace has evolved such that 

hundreds of millions of consumers now 

use mobile broadband to access the 

Internet. For example, as noted earlier, 

by November 2014, 73.6 percent of the 

entire U.S. age 13+ population was 

communicating with smart phones, a 

figure which has continued to rise 

rapidly over the past several years. In 

addition, the number of mobile 

connections already exceeds the U.S. 

population and Cisco forecasts that by 

2019, North America will have nearly 

90% of its installed based converted to 

smart devices and connections, and 

smart traffic will grow to 97% of the 

total global mobile traffic. Mobile 

broadband subscribers, who use the 

same devices to receive voice and data 

communications, can also send or 

receive communications to or from 

anywhere in the nation, whether 

connected with other mobile broadband 

subscribers, fixed broadband 

subscribers, or the hundreds of millions 

of Web sites available to them over the 

Internet. This evidence of the extensive 

changes that have occurred in the 

mobile marketplace demonstrates the 

ubiquity and wide scale use of mobile 

broadband Internet access service today. 

398. Today we update the definition 

of ‘‘public switched network’’ to reflect 

current mass market communications 

network technologies and 

configurations, and the rapidly growing 

and virtually universal use of mobile 

broadband service. It also is more 

consistent with Congressional intent to 

recognize as an ‘‘interconnected 

service’’ today’s broadly available 

mobile broadband Internet access 

service, which connects with the 

Internet and provides its users with the 

ability to send and receive 

communications from all other users 

connected to the Internet, (whether 

fixed or mobile). As CTIA recognizes, 

Congress’s intent in enacting section 

332 was to create a symmetrical 

regulatory framework among similar 

mobile services that were made 

available ‘‘to the public or . . . to such 

classes of eligible users as to be 

effectively available to a substantial 

portion of the public.’’ Given the 

universal access provided today and in 

the foreseeable future by and to mobile 

broadband and its present and 

anticipated future penetration rates in 

the United States, we find that our 

decision today classifying mobile 

broadband Internet access as a 

commercial mobile service is consistent 

with Congress’s objective. As noted 

above, that is a policy judgment that 

section 332(d) expressly delegated to the 

Commission, consistent with its broad 

spectrum management authority under 

Title III. 

399. Moreover, we agree with 

commenters who argue that mobile 

broadband Internet access service meets 

the definition of interconnected service 

for a wholly independent reason: 

Because—even under our existing 

definition of ‘‘public switched network’’ 

adopted in 1994—users have the 

‘‘capability,’’ as provided in section 20.3 

of our rules, to communicate with 

NANP numbers using their broadband 

connection through the use of VoIP 

applications. Other parties disagree, 

arguing that, regardless of the attributes 

of VoIP services that ride over 

broadband Internet access networks, 

broadband Internet access service itself 

does not offer the ability to reach all 

NANP endpoints. These parties note 

also that the Commission itself has 

previously concluded that mobile 

broadband Internet access, in and of 

itself, does not provide the ability to 

reach all other users of the public 

switched network. 

400. We find that the Commission’s 

previous determination about the 

relationship between mobile broadband 

Internet access and VoIP applications in 

the context of section 332 no longer 

accurately reflects the current 

technological landscape. Today, 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. In 

addition, mobile subscribers continue to 

increase their use of smartphones and 

tablets and the significant growth in the 

use of mobile broadband Internet access 

services has spawned a growing mobile 

application ecosystem. The changes in 

the marketplace have increasingly 

blurred the distinction between services 

using NANP numbers and services 

using public IP addresses and highlight 

the convergence between mobile voice 

and data networks that has occurred 

since the Commission first addressed 

the classification of mobile broadband 

Internet access in 2007. Today, mobile 

VoIP, as well as over-the-top mobile 

messaging, is among the increasing 

number of ways in which users 

communicate indiscriminately between 

NANP and IP endpoints on the public 

switched network. In view of these 

changes in the nature of mobile 

broadband service offerings, we find 

that mobile broadband Internet access 

service today, through the use of VoIP, 

messaging, and similar applications, 

effectively gives subscribers the 

capability to communicate with all 

NANP endpoints as well as with all 

users of the Internet. (In support of 

arguments regarding interconnection, 

one of the dissents (Pai Dissent at 51 

n.362), cites the inapposite Time 

Warner Cable Request for Declaratory 

Ruling That Competitive Local 

Exchange Carriers May Obtain 

Interconnection under section 251 of the 

Communications Act of 1934, as 

Amended, to Provide Wholesale 

Telecommunications Services to VoIP 

Providers, Memorandum Opinion and 

Order, 22 FCC Rcd 3513, 3520, paras. 15 

through 16 (Wireline Comp. Bur. 2007). 

Our interpretation here of the 

Commission’s own rule as to what 

constitutes the ‘‘capability’’ to 

communicate with NANP endpoints is a 

completely different question from 

whether wholesale carriers are entitled 

to interconnection rights under section 

251 of the Act regardless of the 

regulatory status of VoIP services 

provided to end users, which was the 

issue addressed by the staff in the Time 

Warner Cable request for a Declaratory 

Ruling.) 

401. We also note that, under the 

Commission’s definition of 

‘‘interconnected service’’ in section 20.3 

of the rules, a service is interconnected 

even if ‘‘. . . the service provides 

general access to points on the public 

switched network but also restricts 

access in certain limited ways.’’ Thus, 

the Commission’s definition, while 

requiring that the interconnected service 

provide the ‘‘capability’’ for access to all 

other users of the public switched 

network, also recognizes that services 

that restrict access to the public 

switched network, in certain limited 

ways, should also be viewed as 

interconnected. (In adopting the 

definition of interconnected service in 


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the Second CMRS Report and Order, the 

Commission recognized that 

interconnected services could be limited 

and noted that ‘‘[i]n defining 

interconnected service in terms of 

transmissions to or from ‘anywhere’ on 

the PSN, we note that it is necessary to 

qualify the scope of the term 

‘anywhere’; if a service that provides 

general access to points on the PSN also 

restricts calling in certain limited ways 

(e.g., calls attempted to be made by the 

subscriber to ‘900’ telephone numbers 

are blocked), then it is our intention still 

to include such a service within the 

definition of ‘interconnected service’ for 

purposes of our part 20 rules.’’) 

Accordingly, to the extent that there is 

an argument that, even with an updated 

definition of public switched network, 

mobile broadband Internet access still 

would not meet the definition of 

interconnected because it would only 

enable communications with some 

rather than all users of the public 

switched network, i.e., users with 

NANP numbers, we disagree and find 

that the Commission’s rules recognize 

that interconnected services may be 

limited in certain ways. Our 

interpretation of the Commission’s rules 

is consistent with their purpose, which 

is to ascertain whether the 

interconnected service is ‘‘broadly 

available.’’ It is also most consistent 

with, and must be informed by, the key 

section 332(d) guidepost that Congress 

provided to the Commission in granting 

it authority to define these terms. This 

guidepost refers to a service available to 

‘‘the public’’ or to such classes of 

eligible users as to be effectively 

available ‘‘to a substantial portion of the 

public.’’ This focus of the inquiry on 

availability to the public or a substantial 

portion of it is also consistent with the 

specific purpose of the statute, which 

was to create a symmetrical regulatory 

framework for similar commercial 

services then being offered to consumers 

by cellular licenses and by SMR 

licensees who were using licenses that 

traditionally had been used to provide 

wireless service only to limited groups 

of users (e.g., taxi fleets). (To make this 

point clear, and in the exercise of our 

authority to ‘‘specif[y] by regulation’’ 

what services qualify as CMRS services 

that make interconnected service 

available to the public or to such classes 

of eligible users as to be effectively 

available to a substantial portion of the 

public, we have made a conforming 

change to the definition of 

Interconnected Service in section 20.3 

of the Commission’s rules.) 

402. Lastly, because today we classify 

mobile broadband Internet access 

service as 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. 

Specifically, as in 2007, but for different 

reasons in light of our reclassification of 

the service as a ‘‘telecommunications 

service,’’ we find that classifying mobile 

broadband Internet access service as a 

commercial mobile service is 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. 

403. Mobile Broadband Internet 

Access Service Is Not a Private Mobile 

Service. Our conclusion that mobile 

broadband Internet access service is a 

commercial mobile service, through the 

application of our updated definition of 

‘‘public switched network,’’ leads 

unavoidably to the conclusion that it is 

not a private mobile service. Indeed, we 

believe that today’s mobile broadband 

Internet access service, with hundreds 

of millions of subscribers and the 

characteristics discussed above, is not 

akin to the private mobile service of 

1994, such as a private taxi dispatch 

service, services that offered users 

access to a discrete and limited set of 

endpoints. Even, however, if that were 

not so, there is another reason that 

mobile broadband Internet access 

service is not a private mobile service: 

It is the functional equivalent of a 

commercial mobile service, even under 

the previous definition of ‘‘public 

switched network.’’ As with the policy 

judgments reflected in the other two 

definitional subsections of section 

332(d) and described above, Congress 

expressly delegated authority to the 

Commission to determine whether a 

particular mobile service may be the 

functional equivalent of a commercial 

mobile service. Specifically, section 332 

of the Act defines ‘‘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.’’ We 

find that mobile broadband Internet 

access service is functionally equivalent 

to 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. 

404. CTIA, Verizon, and AT&T argue 

that mobile broadband Internet access 

service cannot be considered the 

functional equivalent of commercial 

mobile service. First, they argue that the 

Commission failed to provide notice 

that it might deem mobile broadband 

the functional equivalent of CMRS. 

Next, CTIA argues that ‘‘Congress 

intended the hallmark of CMRS to be 

the provision of interconnected service 

through use of the PSTN. No service 

lacking this essential attribute could 

amount to a functional equivalent of 

CMRS.’’ Verizon argues that ‘‘because 

mobile broadband Internet access 

service cannot, on its own, be used to 

place calls to telephone numbers, and 

CMRS cannot be used to connect with 

(for example) Google’s search engine or 

Amazon.com or any of the millions of 

other sources of online content, these 

two services are not substitutes, and 

cannot be deemed functionally 

equivalent.’’ AT&T and CTIA argue that 

mobile broadband Internet access is not 

a substitute for CMRS and therefore is 

not the functional equivalent of CMRS. 

Verizon, CTIA, and AT&T argue that the 

issue of whether or not mobile VoIP 

applications or services themselves may 

be interconnected with the public 

switched network should have no 

bearing on the determination of whether 

mobile broadband Internet access 

service itself may be viewed as the 

functional equivalent of commercial 

mobile service. 

405. We disagree with these 

arguments. First, for the reasons 

discussed above, we disagree with the 

parties’ arguments regarding notice. We 

find that our decision today that mobile 

broadband Internet access service may 

be viewed as the functional equivalent 

of commercial mobile service is a logical 

outgrowth of the discussions and 

questions presented in the 2014 Open 

Internet NPRM. As noted above, our 

2014 Open Internet NPRM sought 


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comment on the option of revising the 

classification of mobile broadband 

Internet access service and on whether 

it would fit within the definition of 

commercial mobile service under 

section 332 of the Act and the 

Commission’s rules implementing that 

section, including section 20.3. Section 

20.3 of the Commission’s rules defines 

commercial mobile radio service as a 

mobile service that is: ‘‘Provided for 

profit, i.e., with the intent of receiving 

compensation or monetary gain; an 

interconnected service; and available to 

the public or to such classes of eligible 

users as to be effectively available to a 

substantial portion of the public; or the 

functional equivalent of such a mobile 

service . . . .’’ Interested parties should 

have reasonably foreseen and in fact 

were aware that the Commission would 

analyze the functional equivalence of 

mobile broadband Internet access 

service as part of its consideration of 

whether it should revise the 

classification of mobile broadband 

Internet access and whether mobile 

broadband Internet access would fit 

within the definition of commercial 

mobile service under section 332. 

Indeed, several parties have submitted 

comments on this question. 

406. We also disagree with CTIA’s 

contention that, if a mobile service is 

not an interconnected service through 

the use of the public switched telephone 

network, it may not be considered the 

functional equivalent of commercial 

mobile service. This argument would 

render the functional equivalence 

language in the statute superfluous by 

essentially requiring a functionally 

equivalent service to meet the literal 

definition of commercial mobile service. 

We find that Congress included the 

functional equivalence provision in the 

statute precisely to address such new 

developments for services that may not 

meet the literal definition of commercial 

mobile service. We also disagree with 

Verizon that, because mobile broadband 

subscribers may use their service to 

communicate with a different and 

broader range of entities, the two 

services cannot be functionally 

equivalent. As noted above, both mobile 

broadband Internet access service and 

commercial mobile service provide their 

users with a service that enables 

ubiquitous access to the vast majority of 

the public. The fact that the services 

may also enable communications in 

other ways or with different groups does 

not make them less useful as substitutes 

for commercial mobile service. 

Moreover, regardless of whether 

providers may offer voice and data 

services separately, as discussed above, 

from both a technical as well as a 

consumer perspective, there are 

increasingly fewer distinctions or 

interoperability issues between these 

types of services. The marketplace 

changes that have occurred since the 

Commission first addressed the 

classification of mobile broadband 

Internet access service in 2007 support 

our finding that mobile broadband 

Internet access service offered to the 

mass market must be viewed today as 

the functional equivalent of commercial 

mobile service. 

407. We recognize that, in the Second 

CMRS Report and Order, the 

Commission created a petition-based 

process for parties interested in 

challenging the classification of a 

particular service as private mobile 

service, and indicated that it would 

consider a variety of factors to 

determine whether a particular service 

is the functional equivalent of a CMRS 

service. Specifically, as AT&T and CTIA 

point out, the Commission said it would 

consider consumer demand for the 

service in question 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. Section 20.9 of 

the Commission’s rules articulates the 

same standard for parties interested in 

challenging the classification of a 

service as a private mobile service. 

While we do not amend section 20.9’s 

separate provision for a petition process 

in other contexts, for the reasons stated 

above related to today’s widespread 

distribution and use of mobile 

broadband devices, we are amending 

section 20.3 to reflect our conclusion 

that mobile broadband Internet access 

service is the functional equivalent of 

CMRS. 

5. The Reclassification of Broadband 

Internet Access Service Will Preserve 

Investment Incentives 

408. In this section, we address 

potential effects of our classification 

decision on investment and innovation 

in the Internet ecosystem. Our 

classification of broadband Internet 

access service flows from the 

marketplace realities in how this service 

is offered. In reaching these 

conclusions, we also consider whether 

the resulting regulatory environment 

produces beneficial conditions for 

investment and innovation while also 

ensuring that we are able to protect 

consumers and foster competition. We 

find that classifying broadband Internet 

access service as a telecommunications 

service—but forbearing from applying 

all but a few core provisions of Title II— 

strikes an appropriate balance by 

combining minimal regulation with 

meaningful Commission oversight. This 

approach is based on the proven model 

Congress and the Commission have 

applied to CMRS, under which 

investment has flourished. 

409. Based on our review of the 

record, the proven application of the 

CMRS model, and our predictive 

judgment about the future of the 

ecosystem under our new legal 

framework, we conclude that the new 

framework will not have a negative 

impact on investment and innovation in 

the Internet marketplace as a whole. As 

is often the case when we confront 

questions about the long-term effects of 

our regulatory choices, the record in this 

proceeding presents conflicting 

viewpoints regarding the likely impact 

of our decisions on investment. We 

cannot be certain which viewpoint will 

prove more accurate, and no party can 

quantify with any reasonable degree of 

accuracy how either a Title I or a Title 

II approach may affect future 

investment. Moreover, regulation is just 

one of many factors affecting investment 

decisions. Although we appreciate 

carriers’ concerns that our 

reclassification decision could create 

investment-chilling regulatory burdens 

and uncertainty, we believe that any 

effects are likely to be short term and 

will dissipate over time as the 

marketplace internalizes our Title II 

approach, as the record reflects and we 

discuss further, below. More 

significantly, 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. 

Industry representatives support this 

judgment, stating that combined 

reclassification and forbearance 

decisions will provide the regulatory 

predictability needed to spur continued 

investment and innovation not only in 

infrastructure but also in content and 

applications. 

410. Investment Incentives. The 2014 

Open Internet NPRM generated spirited 

debate about the consequences that 

classifying broadband Internet access 

service as a telecommunications service 

would have for investment incentives. 

Opponents of reclassification assert that 

Title II requirements will stifle 

innovation and investment. Other 


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commenters vigorously support the 

opposite position, asserting that reliance 

on section 706 authority to support 

open Internet rules is a course fraught 

with prolonged uncertainty that will 

stifle investment and that has already 

had detrimental economic effects. These 

and other commenters claim that a 

cautious regulatory approach based on 

Title II will provide much-needed 

predictability to investors and 

consumers alike, while ensuring that the 

Commission has the statutory authority 

necessary to protect the open Internet, 

promote competition, and protect 

consumers. 

411. The key drivers of investment are 

demand and competition. Internet 

traffic is expected to grow substantially 

in the coming years, and the profits 

associated with satisfying that growth 

provide a strong incentive for 

broadband providers to continue to 

invest in their networks. In addition, 

continuing advances in technology are 

lowering the cost of providing Internet 

access service. The possibility of 

enhancing profit margins can be 

expected to induce broadband providers 

to make the appropriate network 

investments needed to capture a 

reduction in costs made possible only 

through technological advances. 

412. Competition not only creates the 

correct incentives for investment and 

promotes innovation in the broadband 

infrastructure needed to support robust 

and ubiquitous Internet access service, 

but also spurs innovation and 

investment at the ‘‘edge’’ of the network, 

where content and applications are 

created and deployed. As one 

commenter explains, ‘‘Title II promotes 

competitive entry in at least two ways.’’ 

First, section 224 (from which we do not 

forbear in the context of broadband 

Internet access service, as discussed 

below) ‘‘ensures that 

telecommunications carriers receive 

access to the poles of local exchange 

carriers and other utilities at just, 

reasonable, and nondiscriminatory 

rates,’’ an ‘‘important investment benefit 

that will enable those deploying fiberto-the-home or other competitive 

networks to deploy more expeditiously 

and efficiently.’’ (Conversely, ACA 

asserts that reclassification would result 

in increased pole attachment rates for 

many of its members, which would have 

the effect of lowering investment 

incentives both for continued 

investment in existing facilities and for 

new deployments. We do not agree with 

ACA’s prediction concerning 

investment incentives. As we explain 

further below, we are committed to 

avoiding an outcome in which entities 

misinterpret today’s decision as an 

excuse to increase pole attachment rates 

of cable operators providing broadband 

Internet access service. It is not the 

Commission’s intent to see any increase 

in the rates for pole attachments paid by 

cable operators that also provide 

broadband Internet access service, and 

we caution utilities against relying on 

this decision to that end. This Order 

does not itself require any party to 

increase the pole attachment rates it 

charges attachers providing broadband 

Internet access service, and we would 

consider such outcomes unacceptable as 

a policy matter. We will be monitoring 

marketplace developments following 

this Order and will promptly take 

further action in that regard if 

warranted. In any case, such arguments 

do not persuade us not to reclassify 

broadband Internet access service, since 

in reclassifying that service we simply 

acknowledge the reality of how it is 

being offered today.) Title II also ‘‘offers 

other benefits at the state level, 

including access to public rights of 

way,’’ which some broadband providers 

reportedly utilize to deploy networks. 

413. Further, contrary to the 

assertions of opponents of 

reclassification, sensible regulation and 

robust investment are not mutually 

exclusive. The investment record of 

incumbent LECs since passage of the 

1996 Act calls into question claims that 

regulation necessarily stifles 

investment. Indeed, it appears that 

AT&T, Verizon, and Qwest (now 

CenturyLink) increased their capital 

investments as a percentage of revenues 

immediately after the Commission 

expanded Title II requirements pursuant 

to the Telecommunications Act of 1996, 

(The 1996 Telecom Act imposed a set of 

new obligations on incumbent local 

exchange carriers, including, most 

importantly, the duty to provide 

competing carriers access to unbundled 

network elements at cost-based rates. 

See 47 U.S.C. 251(c)(3), 252(d)(1). The 

Commission adopted rules 

implementing the unbundling 

requirements in 1996.) while investment 

levels decreased after 2001, during a 

period when the Commission relieved 

providers of many unbundling 

requirements and other regulatory 

obligations. And, of course, wireline 

DSL was regulated as a common-carrier 

service until 2005—a period in the late 

‘90s and the first five years of this 

century, which saw the highest levels of 

wireline broadband infrastructure 

investment to date. At a minimum, this 

evidence demonstrates that robust 

investment can and does occur even 

when new regulations are adopted. Our 

conclusions are not premised on the 

assumption that regulation never harms 

investment, nor do we deny that 

deregulation often promotes investment; 

rather, we reject assertions that 

reclassification will substantially 

diminish overall broadband investment. 

This is further supported by examining 

broadband providers’ investment 

histories since the announcement of the 

Broadband Classification NOI in 2010. 

While the Commission did not utilize 

reclassification to support its 2010 Open 

Internet Order, it did not close the 

docket on the Broadband Classification 

NOI, indicating that reclassification 

remained an open question. The record 

demonstrates that broadband providers 

continued to invest, at ever increasing 

levels, in their networks post-2010, after 

which broadband providers were clearly 

on notice that the Commission was 

considering reclassifying broadband 

Internet access service as a 

telecommunications service and 

imposing certain Title II regulations 

upon them. 

414. A number of market analysts 

concur that dire predictions of 

disastrous effects on investment are 

overblown. Although some commenters 

claim that then-Chairman 

Genachowski’s May 6, 2010 

announcement that the Commission 

would consider adopting a Title II 

approach prompted analysts to 

downgrade the ratings of Internet access 

service providers and sent stock prices 

downward, the effect of this 

announcement on stock prices, if any, is 

by no means clear. (Free Press explains 

that following the announcement of the 

2010 Broadband Classification NOI, 

‘‘[m]ost of the ISP stocks barely moved 

from this announcement. Verizon and 

AT&T each fell 2 percent. Cable stocks 

did drop more (on substantially higher 

volume), but this was primarily due to 

. . . over-valuation of these stocks 

following better-than-expected Q1 

earnings reports. This was compounded 

by the broader market concerns 

stemming from the EU debt crisis.’’ Free 

Press Comments at 114. In the months 

following the announcement the 

‘‘ILECs, Cable and Wireless companies 

were outperforming the broader market, 

and vastly outperforming the edge 

companies’ stocks. Comcast was the 

only ISP in negative territory, yet still 

outperformed the broader market. And 

its issues were more related to the 

merger than the [NOI].’’) Further, there 

was no appreciable movement in capital 

markets following substantial public 

discussion of the potential use of Title 

II in November. What is clear from this 

debate is that stock price fluctuations 

can be caused by many different factors 


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and are susceptible to various 

interpretations. (At any moment in time, 

the price of a stock reflects the market’s 

valuation of the cash-flow-generating 

capability of the firm. Because a firm’s 

cash flow is based on a multitude of 

factors, it is improper to infer that 

observed stock price changes reflect the 

market’s belief that infrastructure 

investment will decline.) Accordingly, 

we find unpersuasive the arguments 

that Title II classification would have a 

negative impact on stock value. 

415. Tellingly, major infrastructure 

providers have indicated that they will 

in fact continue to invest under the 

framework we adopt, despite suggesting 

otherwise in their filed comments in 

this proceeding. For example, Sprint 

asserts in a letter in this proceeding that 

‘‘[s]o long as the FCC continues to allow 

wireless carriers to manage our 

networks and differentiate our products, 

Sprint will continue to invest in data 

networks regardless of whether they are 

regulated by Title II, section 706, or 

some other light touch regulatory 

regime.’’ It adds that ‘‘Sprint does not 

believe that a light touch application of 

Title II, including appropriate 

forbearance, would harm the continued 

investment in, and deployment of, 

mobile broadband services.’’ Verizon’s 

chief financial officer, Francis Shammo, 

told investors in a conference call in 

response to a question about the effect 

of ‘‘this move to Title II,’’ that ‘‘I mean 

to be real clear, I mean this does not 

influence the way we invest. I mean 

we’re going to continue to invest in our 

networks and our platforms, both in 

Wireless and Wireline FiOS and where 

we need to. So nothing will influence 

that. I mean if you think about it, look, 

I mean we were born out of a highly 

regulated company, so we know how 

this operates.’’ 

416. Today’s Order addressing 

forbearance from Title II and 

accompanying rules for BIAS will 

resolve concerns about uncertainty 

regarding the application of Title II to 

these services, which some argue could 

chill investment. By grounding our 

regulatory authority on firm statutory 

footing and defining the scope of our 

intended regulation, our decision 

establishes the regulatory predictability 

needed by all sectors of the Internet 

industry to facilitate prudent business 

planning, without imposing undue 

burdens that might interfere with 

entrepreneurial opportunities. 

Moreover, the forbearance we grant we 

today is broad in scope and extends to 

obligations that might be viewed as 

characteristic of ‘‘utility-style’’ 

regulation. In particular, we forbear 

from imposing last-mile unbundling 

requirements, a regulatory obligation 

that several commenters argue has led to 

depressed investment in the European 

broadband marketplace. As such, we 

disagree with commenters who assert 

that classification of BIAS as a 

telecommunications service would chill 

investment due to fears that future 

Commissions will reverse our 

forbearance decision, and that 

forbearance will engender protracted 

litigation. (Other commenters also 

wrongly suggest that we plan to apply 

‘‘old world’’ common carrier rules to 

Internet access service, conjuring the 

specter of pervasive and intrusive costof-service rate regulation.) 

417. Some opponents argue that 

classifying broadband Internet access 

services as telecommunications services 

will necessarily lead to regulation of 

Internet backbone services, CDNs, and 

edge services, compounding the 

suppressive effects on investment and 

innovation throughout the ecosystem. 

Our findings today regarding the 

changed broadband market and services 

offered are specific to the manner in 

which these particular broadband 

Internet access services are offered, 

marketed, and function. We do not 

make findings with regard to the other 

services, offerings, and entities over 

which commenters raise concern, and in 

fact explicitly exclude such services 

from our definition of broadband 

Internet access services. 

418. CALinnovates submitted a 

commissioned White Paper by NERA 

Economic Consulting, asserting that 

reclassification will have a strong 

negative effect on innovation (with 

associated harms to investment and 

employment). The White Paper asserts 

that small edge providers will be 

harmed by reclassification, as Title II 

provisions ‘‘will serve to increase the 

capital costs for innovators both directly 

and indirectly as well as to foster the 

sort of regulatory uncertainty that deters 

investors from ever investing.’’ We 

disagree. The White Paper assumes that 

broadband Internet access services will 

be subject to the full scope of Title II 

provisions, and ascribes increased costs 

to regulatory uncertainty. As discussed 

below, we forbear from application of 

many of Title II’s provisions to 

broadband Internet access services, and 

in doing so, provide the regulatory 

certainty necessary to continued 

investment and innovation. We also 

reject the argument, set forth by the 

Phoenix Center, that reclassification 

would require broadband providers ‘‘to 

create, and then tariff, a termination 

service for Internet content under 

section 203 of the Communications 

Act.’’ 

419. US Telecom submitted a study 

finding that under Title II regulation, 

wireline broadband providers are likely 

to invest significantly less than they 

would absent Title II regulation over the 

next five years, putting at risk much of 

the large capital investments that will be 

needed to meet the expected increases 

in demand for data service. The study 

contains several substantial analytical 

flaws which call its conclusions into 

question. First, the study inaccurately 

assumes that no wireless services are 

Title II services. In fact, wireless voice 

service is subject to Title II with 

forbearance, similar to the approach that 

we adopt here for BIAS. Second, the 

empirical models in the study 

incorrectly leave out factors that are 

important determinants of the 

dependent variables. For example, the 

level of the firm’s demand for wireline 

services and its predicted rate of growth 

are left out as factors that clearly should 

be considered as determinants of 

wireline capital expenditures in Table 1. 

The statistical models in the paper are 

thus forced to either over- or underestimate the role of the variables that are 

considered in the study, and as a result 

the predicted level of wireline 

investment subject to Title II regulation 

and its predicted rate of growth are not 

correct. We also agree with Free Press’ 

argument that the study ignores the 

reality that once last-mile networks are 

built, the substantial initial investment 

has already been outlayed. For example, 

for the authors to observe that there was 

less investment in wireline networks 

than in wireless networks following the 

2009 recession merely observes that 

wireline networks were largely 

constructed prior to 2009, while mobile 

wireless data networks were not. 

Further, as Free Press asserts, the study 

ignores evidence of massive network 

investments by incumbent LECs in the 

Ethernet market, which is regulated 

under Title II. The US Telecom study 

also did not factor in the potential effect 

of forbearance on investment decisions. 

We are thus unpersuaded that this study 

is determinative regarding the effect that 

reclassification will have on investment. 

420. CMRS, Enterprise Broadband, 

and Voluntary Title II. Our conclusions 

are further borne out in examining the 

market for those services that are 

already subject to Title II. The 

Commission’s experience with CMRS, 

to which Title II explicitly applies, 

demonstrates that application of Title II 

is not inconsistent with robust 

investment in a service. The sizable 

investments made by CMRS providers, 

who operate under a market-based Title 

II regulatory regime, allow us to predict 


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with ample confidence that our 

narrowly circumscribed application of 

Title II to broadband Internet access 

service will not cripple the regulated 

industries or deprive consumers of the 

benefits of continued investment and 

innovation in network infrastructure 

and Internet applications. 

421. In 1993, Congress established a 

new regulatory framework for CMRS by 

giving the Commission the authority to 

forbear from applying any provision of 

Title II to CMRS except sections 201, 

202, or 208. (This statutory framework, 

set forth in section 332 of the 

Communications Act, also preempts 

State or local government regulation of 

CMRS rates and entry, but permits State 

or local regulation of other CMRS terms 

and conditions.) Congress prescribed 

the standard for forbearance in terms 

nearly identical to the standard it later 

adopted for common carriage services in 

the Telecommunications Act of 1996. In 

1994, the Commission implemented its 

new authority by forbearing from 

applying sections 203, 204, 205, 211, 

212, and portions of 214, thereby 

relieving providers of the burdens 

associated with the filing of tariffs, 

Commission investigation of new and 

existing rates, rate prescription and 

refund orders, regulations governing 

interlocking directorates, and regulatory 

control of market entry and exit. CMRS 

providers remain subject to the 

remaining provisions in parts I and II of 

Title II. Recognizing that the ‘‘continued 

success of the mobile 

telecommunications industry is 

significantly linked to the ongoing flow 

of investment capital into the industry,’’ 

the Commission sought to ensure that 

its policies fostered robust investment, 

and it chose a regulatory path intended 

to establish ‘‘a stable, predictable 

regulatory environment that facilitates 

prudent business planning.’’ 

422. Mobile providers have thrived 

under a market-based Title II regime. 

During the period between 1993 and the 

end of 2009, while mobile voice was the 

primary driver of mobile revenues, 

wireless subscribership grew over 1600 

percent, with more than 285 million 

subscribers at the end of 2009. Industry 

revenues increased from $10.9 billion in 

1993 to over $152 billion—a 1300 

percent increase. Further, between 1993 

and 2009, the industry invested more 

than $271 billion in building out their 

wireless networks, which was in 

addition to monies spent acquiring 

spectrum. (We note that Verizon argues 

that wireless investment began 

increasing around 2003 due to growth in 

mobile broadband, and disputes the 

idea that this investment was driven by 

CMRS voice services. However, given 

that mobile broadband was not 

classified as a Title I information service 

until 2007, it is not clear the extent to 

which increases in investment before 

then can be attributed to a non-CMRS 

regulatory environment. Furthermore, 

voice service has continued to account 

for a significant portion of revenues. 

Free Press cites data showing 

substantial investment growth in the 

late 1990s (a time of increased demand 

for voice services) and the late 2000s to 

present (a period of increased 

smartphone use). During the latter years, 

as discussed above, Verizon’s LTE 

network was subject to openness rules 

imposed by spectrum licensing 

conditions. Regardless of which 

assumptions are made, it is clear that 

there has been substantial network 

investment by mobile wireless providers 

during a significant period of time in 

which these providers’ services have 

been subject to Title II regulation or 

openness requirements. Indeed, the data 

suggest that network investments have 

been driven more by overall market 

conditions, including consumer 

demand, than by the particular 

regulatory framework in place.) Verizon 

Wireless, in particular, has invested tens 

of billions of dollars in deploying 

mobile wireless services since being 

subject to the 700 MHz C Block open 

access rules, which overlap in 

significant parts with the open Internet 

rules we adopt today. Similarly, during 

this period, the wireless industry built 

nearly 235,000 cell sites across the 

country—more than an 1800 percent 

increase over the approximately 13,000 

sites at the end of 1993. Wireless voice 

service is now available to over 99.9 

percent of the U.S. population. More 

than 99.4 percent of subscribers are 

served by at least two providers, and 

more than 96 percent are served by at 

least three providers. Finally, the recent 

AWS auction, conducted under the 

specter of Title II regulation, generated 

bids (net of bidding credits) of more 

than $41 billion—demonstrating that 

robust investment is not inconsistent 

with a light-touch Title II regime. Fears 

that our classification decision will lead 

to excessive regulation of Internet access 

service should be dispelled by our 

record of regulating the wireless voice 

industry for nearly twenty years under 

Title II. 

423. In addition, the key provisions of 

Title II apply to certain enterprise 

broadband services. In a series of 

forbearance orders in 2007 and 2008, 

the Commission forbore from 

application of a number of Title II’s 

provisions to AT&T, Qwest, Embarq, 

and Frontier. Since that time, those 

services have been subject to sections 

201, 202, and 208, as well as certain 

other provisions that the Commission 

determined were in the public interest. 

AT&T has recently called this 

framework an ‘‘unqualified regulatory 

success story,’’ and claimed that these 

services ‘‘represent the epicenter of 

broadband investment that the 

Commission’s national broadband 

policies seek to promote.’’ The record 

does not evince any evidence that 

continued ‘‘light touch’’ Title II 

regulation has hindered investment in 

these services. 

424. We observe that Title II currently 

applies not just to interconnected 

mobile voice and data services and to 

enterprise broadband services, but also 

the wired broadband offerings of more 

than 1000 rural local exchange carriers 

(LECs) that voluntarily offer their DSL 

and fiber broadband services as 

common carrier offerings ‘‘in order to 

participate in National Exchange Carrier 

Association (NECA) tariff pools, which 

allow small carriers to spread costs and 

risks amongst themselves,’’ without 

harmful effects on investment. (As 

discussed above, see section IV.C.1., the 

broadband Internet access service we 

define today is itself a transmission 

service. We disagree with the argument 

that in classifying BIAS, rather than a 

transmission ‘‘component’’ of BIAS, we 

are diverging from prior precedent 

regarding these DSL services and what 

the Justices were debating in Brand X. 

See Pai Dissent at 40 through 42. 

Whether we refer to that function as 

‘‘access,’’ ‘‘connectivity,’’ or 

‘‘transmission,’’ we have defined BIAS 

today such that it is the capability to 

send and receive packets to all or 

substantially all Internet endpoints. 

Thus, the service we define and classify 

today is the same transmission service 

as that discussed in prior Commission 

orders.) As NTCA, which represents 

many of these entities, explained, 

‘‘[c]ontrary to the dire, and somewhat 

hyperbolic, predictions of a few, the 

application of Title II only and strictly 

to the transport and transmission 

component underpinning retail 

broadband service will not cause 

investment in broadband networks and 

the services that ride atop them to grind 

to a halt. To the contrary, a continued 

lack of clear ‘rules of the road’ is far 

more likely to have a deleterious effect 

on investment nationwide by providers 

large and small.’’ Thus, we disagree 

with assertions by the American Cable 

Association that ‘‘Title II 

‘reclassification’ or partial 

‘classification’ of broadband Internet 

access service would have immediate 


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and disastrous economic consequences 

for small and medium-sized ISPs.’’ 

D. Judicial Estoppel Does Not Apply 

Here 

425. Finally, we reject the argument 

that we are judicially estopped from 

finding that broadband Internet access 

service is a telecommunications service. 

Judicial estoppel is an equitable 

doctrine that courts may invoke at their 

discretion to prevent a party that 

prevailed on an issue in one case from 

taking a contrary position in another 

case. Several commenters contend that 

because the Commission successfully 

argued before the Supreme Court in 

Brand X that cable modem service is an 

information service, the Commission is 

judicially estopped from finding that 

broadband Internet access service is a 

telecommunications service. 

426. We disagree. Although the 

Supreme Court has not adopted a 

blanket rule barring estoppel against the 

government, if it exists at all it is ‘‘hen’s 

teeth rare.’’ Judicial estoppel may be 

invoked against the government only 

when ‘‘it conducts what ‘appears to be 

a knowing assault upon the integrity of 

the judicial system,’’’ such as when the 

inconsistent positions are tantamount to 

a knowing misrepresentation or even 

fraud upon the court. Judicial estoppel 

will not be applied when the shift in 

position ‘‘is the result of a change in 

public policy.’’ 

427. 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.’’’ 

Following that directive, we have 

reexamined the Commission’s prior 

classification decisions and now 

conclude that broadband Internet access 

service is a telecommunications service. 

This Declaratory Ruling is the result of 

what we believe to be the better reading 

of the Communications Act under 

current factual and legal circumstances; 

it manifestly is not the product of fraud 

or other egregious misconduct. 

428. Moreover, judicial estoppel does 

not apply unless a party’s current 

position is ‘‘clearly inconsistent’’ with 

its position in an earlier legal 

proceeding. In the Brand X litigation 

and now, the Commission has 

consistently maintained the position 

that the relevant statutory provisions are 

susceptible to more than one reasonable 

interpretation. Counsel for the 

Commission argued in Brand X that the 

Commission reasonably construed 

ambiguous statutory language in finding 

that cable modem service is an 

information service. The Supreme Court 

agreed and deferred to the 

Commission’s judgment, but recognized 

that a contrary interpretation also would 

be permissible: ‘‘[O]ur conclusion that it 

is reasonable to read the 

Communications Act to classify cable 

modem service solely as an ‘information 

service’ leaves untouched Portland’s 

holding that the Commission’s 

interpretation is not the best reading of 

the statute.’’ Although we respect the 

Commission’s prior classification 

decisions and the policy considerations 

underlying them, we believe the better 

view at this time is that broadband 

Internet access is a telecommunications 

service as defined in the Act. Because 

our decision does not result in ‘‘‘the 

perversion of the judicial process,’’’ 

judicial estoppel should not be applied 

here. 

E. State and Local Regulation of 

Broadband Services 

429. We reject the argument that 

‘‘potential state tax implications’’ 

counsel against the classification of 

broadband Internet access service as a 

telecommunications service. Our 

classification of broadband Internet 

access service as a telecommunications 

service appropriately derives from the 

factual characteristics of these services 

as they exist and are offered today. At 

any rate, we observe that the recently 

reauthorized Internet Tax Freedom Act 

(ITFA) prohibits states and localities 

from imposing ‘‘[t]axes on Internet 

access.’’ This prohibition applies 

notwithstanding our regulatory 

classification of broadband Internet 

access service. Indeed, the legislative 

history of ITFA emphasizes that 

Congress drafted its definition of 

‘‘Internet access’’ to be independent of 

the regulatory classification 

determination in order to ‘‘clarify that 

all transmission components of Internet 

access, regardless of the regulatory 

treatment of the underlying platform, 

are covered under the ITFA’s Internet 

tax moratorium.’’ (Moreover, today’s 

decision would not bring broadband 

providers within the ambit of any state 

or local laws that impose property taxes 

on ‘‘telephone companies’’ or 

‘‘utilities,’’ as those terms are commonly 

understood. As noted herein, we are not 

regulating broadband Internet access 

service as a utility or telephone 

company.) 

430. Today, we reaffirm the 

Commission’s longstanding conclusion 

that broadband Internet access service is 

jurisdictionally interstate for regulatory 

purposes. (The record generally 

supports the continued application of 

this conclusion to broadband Internet 

access service.) As a general matter, 

mixed-jurisdiction services are typically 

subject to dual federal/state jurisdiction, 

except where it is impossible or 

impractical to separate the service’s 

intrastate from interstate components 

and the state regulation of the intrastate 

component interferes with valid federal 

rules or policies. (Notwithstanding the 

interstate nature of BIAS, states of 

course have a role with respect to 

broadband. As the Commission has 

stated ‘‘finding that this service is 

jurisdictionally interstate [] does not by 

itself preclude’’ all possible state 

requirements regarding that service.) 

With respect to broadband Internet 

access services, the Commission has 

previously found that, ‘‘[a]lthough . . . 

broadband Internet access service traffic 

may include an intrastate component, 

. . . broadband Internet access service 

is properly considered jurisdictionally 

interstate for regulatory purposes.’’ The 

Commission thus has evaluated possible 

state regulations of broadband Internet 

access service to guard against any 

conflict with federal law. Though we 

adopt some changes to the legal 

framework regulating broadband, the 

Commission has consistently applied 

this jurisdictional conclusion to 

broadband Internet access services, and 

we see no basis in the record to deviate 

from this established precedent. The 

‘‘Internet’s inherently global and open 

architecture’’ enables edge providers to 

serve content through a multitude of 

distributed origination points, making 

end-to-end jurisdictional analysis 

extremely difficult—if not impossible— 

when the services at issue involve the 

Internet. 

431. We also make clear that the states 

are bound by our forbearance decisions 

today. Under section 10(e), ‘‘[a] State 

commission may not continue to apply 

or enforce any provision’’ from which 

the Commission has granted 

forbearance. With respect to universal 

service, we conclude that the imposition 

of state-level contributions on 

broadband providers that do not 

presently contribute would be 

inconsistent with our decision at the 

present time to forbear from mandatory 

federal USF contributions, and therefore 

we preempt any state from imposing 

any new state USF contributions on 

broadband—at least until the 

Commission rules on whether to 

provide for such contributions. 

(Preemptive delay of state and local 

regulations is appropriate when the 

Commission determines that such 

action best serves federal 

communications policies. We note that 

we are not aware of any current state 


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assessment of broadband providers for 

state universal service funds, as we 

understand that those carriers that have 

chosen voluntarily to offer Internet 

transmission as a Title II service classify 

such revenues as 100 percent interstate.) 

We recognize that section 254 expressly 

contemplates that states will take action 

to preserve and advance universal 

service, but as discussed below, our 

actions in this regard will benefit from 

further deliberation. 

432. Finally, we announce our firm 

intention to exercise our preemption 

authority to preclude states from 

imposing obligations on broadband 

service that are inconsistent with the 

carefully tailored regulatory scheme we 

adopt in this Order. While we establish 

a comprehensive regulatory framework 

governing broadband Internet access 

services nationwide today, situations 

may nonetheless arise where federal and 

state actions regarding broadband 

conflict. (We note also that we do not 

believe that the classification decision 

made herein would serve as justification 

for a state or local franchising authority 

to require a party with a franchise to 

operate a ‘‘cable system’’ (as defined in 

section 602 of the Act) to obtain an 

additional or modified franchise in 

connection with the provision of 

broadband Internet access service, or to 

pay any new franchising fees in 

connection with the provision of such 

services.) The Commission has used 

preemption to protect federal interests 

when a state regulation conflicts with 

federal rules or policies, and we intend 

to exercise this authority to preempt any 

state regulations which conflict with 

this comprehensive regulatory scheme 

or other federal law. For example, 

should a state elect to restrict entry into 

the broadband market through 

certification requirements or regulate 

the rates of broadband Internet access 

service through tariffs or otherwise, we 

expect that we would preempt such 

state regulations as in conflict with our 

regulations. While we necessarily 

proceed on a case-by-case basis in light 

of the fact specific nature of particular 

preemption inquiries, we will act 

promptly, whenever necessary, to 

prevent state regulations that would 

conflict with the federal regulatory 

framework or otherwise frustrate federal 

broadband policies. 

V. Order: Forbearance for Broadband 

Internet Access Services 

433. Having classified broadband 

Internet access service as a 

telecommunications service, we now 

consider whether the Commission 

should grant forbearance as to any of the 

resulting requirements of the Act or 

Commission rules. As proposed in the 

2014 Open Internet NPRM, we do not 

forbear from sections 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. As discussed below, we also do 

not forbear from certain provisions in 

the context of broadband Internet access 

service to protect customer privacy, 

advance access for persons with 

disabilities, and foster network 

deployment. Because we believe that 

those protections and our open Internet 

rules collectively will strike the right 

balance at this time of minimizing the 

burdens on broadband providers while 

still adequately protecting the public, 

particularly given the objectives of 

section 706 of the 1996 Act, we 

otherwise grant substantial forbearance. 

A. Forbearance Framework 

434. Section 10 provides that the 

Commission ‘‘shall’’ forbear from 

applying any regulation or provision of 

the Communications Act to 

telecommunications carriers or 

telecommunications services if the 

Commission determines that: 

(1) Enforcement of such regulation or 

provision is not necessary to ensure that the 

charges, practices, classifications, or 

regulations by, for, or in connection with that 

telecommunications carrier or 

telecommunications service are just and 

reasonable and are not unjustly or 

unreasonably discriminatory; 

(2) enforcement of such regulation or 

provision is not necessary for the protection 

of consumers; and 

(3) forbearance from applying such 

provision or regulation is consistent with the 

public interest. (For the same reasons set 

forth herein with respect to the forbearance 

granted under our section 10(a) analysis, 

forbearance from those same provisions and 

regulations in the case of the mobile 

broadband Internet access services also is 

consistent with the virtually identical 

forbearance standards for CMRS set forth in 

section 332(c)(1)(A).) 

435. The Commission previously has 

considered whether a current need 

exists for a rule in evaluating whether 

a rule is ‘‘necessary’’ under the first two 

prongs of the three-part section 10 

forbearance test. In particular, the 

current need analysis assists in 

interpreting the word ‘‘necessary’’ in 

sections 10(a)(1) and 10(a)(2). For those 

portions of our forbearance analysis that 

do require us to assess whether a rule 

is necessary, the D.C. Circuit concluded 

that ‘‘‘it is reasonable to construe 

‘necessary’ as referring to the existence 

of a strong connection between what the 

agency has done by way of regulation 

and what the agency permissibly sought 

to achieve with the disputed 

regulation.’’’ In contrast, section 10(a)(3) 

requires the Commission to consider 

whether forbearance is consistent with 

the public interest, an inquiry that also 

may include other considerations. 

436. Also central to our analysis, 

section 706 of the 1996 Act ‘‘explicitly 

directs the FCC to ‘utiliz[e]’ forbearance 

to ‘encourage the deployment on a 

reasonable and timely basis of advanced 

telecommunications capability to all 

Americans.’’’ In its most recent 

Broadband Progress Report, the 

Commission found ‘‘that broadband is 

not being deployed to all Americans in 

a reasonable and timely fashion.’’ This, 

in turn, triggers a duty under section 

706 for the Commission to ‘‘take 

immediate action to accelerate 

deployment.’’ Within the statutory 

framework that Congress established, 

the Commission ‘‘possesses significant, 

albeit not unfettered, authority and 

discretion to settle on the best 

regulatory or deregulatory approach to 

broadband.’’ 

437. This proceeding is unlike typical 

forbearance proceedings in that, often, a 

petitioner files a petition seeking relief 

pursuant to section 10(c). In such 

proceedings, ‘‘the petitioner bears the 

burden of proof—that is, of providing 

convincing analysis and evidence to 

support its petition for forbearance.’’ 

However, under section 10, the 

Commission also may forbear on its own 

motion. Because the Commission is 

forbearing on its own motion, it is not 

governed by its procedural rules insofar 

as they apply, by their terms, to section 

10(c) petitions for forbearance. (We thus 

also reject criticisms of possible 

forbearance based on arguments that the 

2014 Open Internet NPRM would not 

satisfy those rules. Indeed, while the 

Commission modeled its forbearance 

procedural rules on procedures from the 

notice and comment rulemaking context 

in certain ways, in other, significant 

ways it drew upon procedures used 

outside that context. Thus, the 

Commission’s adoption of these rules 

neither expressly bound the 

Commission nor reflected its view of the 

general standards relevant to a notice 

and comment rulemaking.) Further, the 

fact that the Commission may adopt a 

rule placing the burden on a party filing 

a section 10(c) petition for forbearance 

in implementing an ambiguous statutory 

provision in section 10 of the Act, does 

not require the Commission to assume 

that burden where it forbears on its own 

motion, and we reject suggestions to the 

contrary. Because the Commission is not 

responding to a petition under section 

10(c), we conduct our forbearance 


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analysis under the general reasoned 

decision making requirements of the 

Administrative Procedure Act, without 

the burden of proof requirements that 

section 10(c) petitioners face. We 

conclude that the analysis below readily 

satisfies both the standards of section 10 

(We conclude that the section 10 

analytical framework described above 

comports with the statutory 

requirements, and is largely consistent 

with alternative formulations suggested 

by others. To the extent that such 

comments could be read to suggest 

different analyses in any respects, we 

reject them as not required by section 

10, as we interpret it above.) and the 

reasoned decision making requirements 

of the APA and thus reject claims that 

broad forbearance accompanying 

classification decisions necessarily 

would be arbitrary and capricious. 

438. We reject arguments suggesting 

that persuasive evidence of competition 

is a necessary prerequisite to granting 

forbearance under section 10 even if the 

section 10 criteria otherwise are met. 

For example, the Commission has in the 

past granted forbearance from particular 

provisions of the Act or regulations 

where it found the application of other 

requirements (rather than marketplace 

competition) adequate to satisfy the 

section 10(a) criteria, and nothing in the 

language of section 10 precludes the 

Commission from proceeding on that 

basis where warranted. (Section 10(b) 

does direct the Commission to consider 

whether forbearance will promote 

competitive market conditions as part of 

the public interest analysis under 

section 10(a)(3). However, while a 

finding that forbearance will promote 

competitive market conditions may 

provide sufficient grounds to find 

forbearance in the public interest under 

section 10(a)(3), see id., nothing in the 

text of section 10 makes such a finding 

a necessary prerequisite for forbearance 

where the Commission can make the 

required findings under section 10(a) for 

other reasons. For similar reasons we 

reject the suggestion that more 

geographically granular data or 

information or an otherwise more 

nuanced analysis are needed with 

respect to some or all of the forbearance 

granted in this Order. The record and 

our analysis supports forbearance from 

applying the statutory provisions and 

Commission regulations to the extent 

described below based on 

considerations that we find to be 

common nationwide, and as discussed 

in our analysis of the record below, we 

do not find persuasive evidence or 

arguments to the contrary in the record 

as to any narrower geographic area(s) or 

as to particular provisions or 

regulations.) Thus, although, in 

appropriate circumstances, persuasive 

evidence of competition can be a 

sufficient basis to grant forbearance, it is 

not inherently necessary to a grant of 

forbearance under section 10. The 

Qwest Phoenix Order, cited by some 

commenters in this regard, is not to the 

contrary. Unlike here, the Commission 

in the Qwest Phoenix Order was 

addressing a petition where the 

rationale for forbearance was premised 

on the state of competition. (Insofar as 

the Commission likewise was 

responding to arguments that 

competition was sufficient to warrant 

forbearance when acting on other 

forbearance petitions, this distinguishes 

those decisions, as well. Likewise, to the 

extent that the Commission has found 

competition to be a sufficient basis to 

grant forbearance on its own motion in 

the past, that does not dictate that it 

only can grant forbearance under such 

circumstances. Rather, the Commission 

grants forbearance where it finds that 

the section 10(a) criteria are met.) This 

proceeding does not involve a similar 

request for relief, and, indeed, the Qwest 

Phoenix Order itself specifically 

observed that ‘‘a different analysis may 

apply when the Commission addresses 

advanced services, like broadband 

services,’’ where the Commission, 

among other things, ‘‘must take into 

consideration the direction of section 

706.’’ For similar reasons we reject as 

inconsistent with the text of section 10 

and our associated precedent the 

argument that forbearance only is 

appropriate when the grant of 

forbearance will itself spur conduct that 

mitigates the need for the forborne-from 

requirements. 

B. Maintaining the Customer Safeguards 

Critical to Protecting and Preserving the 

Open Internet 

439. As discussed below, we find 

sections 201 and 202 of the Act, along 

with section 208 and certain 

fundamental Title II enforcement 

authority, necessary to ensure just and 

reasonable conduct by broadband 

providers and necessary to protect 

consumers under sections 10(a)(1) and 

(a)(2). We also find that forbearance 

from these provisions would not be in 

the public interest under section 

10(a)(3), and therefore do not grant 

forbearance from those provisions and 

associated enforcement procedural rules 

with respect to the broadband Internet 

access service at issue here. 

1. Authority To Protect Consumers and 

Promote Competition: Sections 201 and 

202 

440. The Commission has found that 

sections 201 and 202 ‘‘lie at the heart of 

consumer protection under the Act,’’ 

and we find here that forbearance from 

those provisions would not be in the 

public interest under section 10(a)(3). 

The Commission has never previously 

forborne from applying these ‘‘bedrock 

consumer protection obligations,’’ and 

we generally do not find forbearance 

warranted here. This conclusion is 

consistent with the views of many 

commenters that any service classified 

as a telecommunications service should 

remain subject to those provisions. 

However, particularly in light of the 

protections the open Internet rules 

provide and the ability to employ 

sections 201 and 202 in case-by-case 

adjudications, we are otherwise 

persuaded to forbear from applying 

sections 201 and 202 of the Act in a 

manner that would enable the adoption 

of ex ante rate regulation of broadband 

Internet access service in the future, as 

discussed below. (To be clear, this ex 

ante rate regulation forbearance does 

not extend to inmate calling services 

and therefore has no effect on our ability 

to address rates for inmate calling 

services under section 276.) 

441. For one, sections 201 and 202 

help enable us to preserve and protect 

Internet openness broadly, and applying 

those provisions benefits the public 

broadly by helping foster innovation 

and competition at the edge, thereby 

promoting broadband infrastructure 

investment nationwide. As explained 

above, the open Internet rules adopted 

in this Order reflect more specific 

protections against unjust or 

unreasonable rates or practices for or in 

connection with broadband Internet 

access service. These benefits—which 

can extend beyond the specific dealings 

between a given broadband provider 

and a given customer—persuade us that 

forbearance from sections 201 and 202 

here is not in the public interest. 

442. Retaining these provisions, 

moreover, is in the public interest 

because it provides the Commission 

direct statutory authority to protect 

Internet openness and promote fair 

competition while allowing the 

Commission to adopt a tailored 

approach and forbear from most other 

requirements. As discussed below, this 

includes forbearance from the preexisting ex ante rate regulations and 

other Commission rules implementing 

sections 201 and 202. (We thus reject 

the arguments of some commenters 

against the application of these 


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provisions insofar as they assume that 

such additional regulatory requirements 

also will apply in the first instance.) As 

another example, this authority 

supports our forbearance from other 

interconnection requirements in the 

Act. Such considerations provide 

additional grounds for our conclusion 

that section 10(a)(3) is not satisfied as to 

forbearance from sections 201 and 202 

of the Act with respect to broadband 

Internet access service. 

443. We also conclude that it would 

not be in the public interest to forbear 

from applying sections 201 and 202 

given concerns that limited competition 

could, absent the backstop provided by 

that authority, result in harmful effects. 

Among other things, broadband 

providers are in a position to be 

gatekeepers to the end-user customers of 

their broadband Internet access service. 

In addition, although there is some 

amount of competition for broadband 

Internet access service, it is limited in 

key respects. While harmful practices by 

broadband providers—whether in 

general or as to particular customers— 

conceivably could motivate an end user 

to select a different provider of 

broadband Internet access service, the 

record does not provide convincing 

evidence of the nature or extent of such 

effects in particular. (Commenters citing 

generalized information about the extent 

of switching among broadband 

providers does not address the specific 

concerns that we identify here about 

consumers’ likelihood and ability to 

switch broadband providers based on 

particular practices by those providers, 

nor on the likelihood that any such 

switching would deter the harmful 

conduct.) To the contrary, for example, 

data show that the majority of 

Americans face a choice of only two 

providers of fixed broadband for service 

at speeds of 3 Mbps/768 kbps to 10 

Mbps/768 kbps, and no choice at all 

(zero or one service provider) for service 

at 25/3 Mbps. We also find significant 

costs associated with switching service 

that further limit the potential benefits 

of any competition that would 

otherwise exist. These collectively 

persuade us that we cannot simply 

conclude, as a general matter, that there 

is extensive competition sufficient to 

constrain providers’ conduct here. 

Moreover, as the Commission found in 

the CMRS context, competition would 

‘‘not necessarily protect all consumers 

from all unfair practices. The market 

may fail to deter providers from 

unreasonably denying service to, or 

discriminating against, customers whom 

they may view as less desirable.’’ In 

addition, and again similar to the 

Commission’s conclusion in the CMRS 

context, even in a competitive market 

certain conditions could create 

incentives and opportunities for service 

providers to engage in discriminatory 

and unfair practices. (For the same 

reasons discussed above, we are not 

persuaded to reach a different 

forbearance decision based on asserted 

levels of competition faced by small- or 

mid-sized broadband providers.) 

Furthermore, no matter how many 

options end users have in selecting a 

provider of Internet access service, or 

how readily they could switch 

providers, an edge provider only can 

reach a particular end user through his 

or her broadband provider. We thus 

reject suggestions that market forces will 

be sufficient to ensure that providers of 

broadband Internet access service do not 

act in a manner contrary to the public 

interest. 

444. Against this backdrop we are 

unpersuaded by arguments seeking 

forbearance from sections 201 and 202 

based on generalized arguments about 

marketplace developments, such as 

network investment or changes in 

performance or price per megabit, in the 

recent past. However, counterarguments 

in the record, longer-term trends, and 

our experience in the CMRS context 

where sections 201 and 202 have 

applied, leave us unpersuaded that the 

inapplicability of sections 201 and 202 

were a prerequisite for any such 

marketplace developments. We are 

similarly unpersuaded by arguments 

comparing the U.S. broadband 

marketplace with those in Europe, 

given, among other things, the 

differences between the regulatory 

approach there and the regulatory 

framework that results from this Order. 

We thus find those arguments for 

forbearance sufficiently speculative and 

subject to debate that they do not 

overcome our public interest analysis 

above. 

445. For these same reasons, we are 

not persuaded that application of 

sections 201 and 202 is not necessary to 

ensure just, reasonable, and 

nondiscriminatory conduct by 

broadband providers and for the 

protection of consumers under sections 

10(a)(1) and (a)(2). As discussed above, 

applying these provisions enables us to 

protect customers of broadband Internet 

access service from potentially harmful 

conduct by broadband providers both by 

providing a basis for our open Internet 

rules and for the important statutory 

backstop they provide regarding 

broadband provider practices more 

generally. 

446. We also observe that our 

forbearance decision as to sections 201 

and 202 for broadband Internet access 

service is informed by the CMRS 

experience, where Congress specifically 

recognized the importance of sections 

201 and 202 (along with section 208) in 

excluding those provisions from 

possible forbearance under section 

332(c)(1)(A). Application of sections 201 

and 202 has not frustrated investment in 

the wireless marketplace, nor has it led 

to ex ante regulation of rates charged to 

consumers for wireless voice service. 

Indeed, we find that the successful 

application of this legal framework in 

the CMRS context responds to the 

concerns of some commenters about the 

potential burdens, or uncertainty, 

resulting from the application of 

sections 201 and 202, which they 

contend could create disincentives for 

investment even standing alone and 

apart from ex ante rules. (While Verizon 

attempts to distinguish the CMRS 

experience by claiming that, unlike 

voice service, ‘‘broadband has never 

been subject to Title II,’’ Verizon Jan. 26, 

2015 Ex Parte Letter at 5, this is both 

factually incorrect for the reasons 

described above, nor does it 

meaningfully address the fact that the 

CMRS marketplace has seen substantial 

growth and investment under the 

regulatory framework that the 

Commission did apply.) Moreover, 

within their scope, our open Internet 

rules reflect our interpretation of how 

sections 201 and 202 apply, providing 

further guidance and addressing 

possible concerns about uncertainty 

regarding the application of sections 201 

and 202. Beyond that, we are not 

persuaded that concerns about the 

burdens or uncertainty associated with 

sections 201 and 202 counsel in favor of 

a contrary public interest finding under 

section 10(a)(3), particularly given the 

very generalized concerns commenters 

raised. 

447. Although some have argued that 

section 706 of the 1996 Act provides 

sufficient authority to adopt open 

Internet protections, and we do, in fact, 

conclude that section 706 provides 

additional support here, we nonetheless 

conclude that the application of sections 

201 and 202 is appropriate to remove 

any ambiguity regarding our authority to 

enforce strong, clear open Internet rules. 

(For example, although we find that we 

have authority under section 706 of the 

1996 Act to implement appropriate 

enforcement mechanisms, our reliance 

on sections 201 and 202 as additional 

sources of authority (coupled with the 

enforcement provisions from which we 

do not forbear, as discussed below), 

eliminates possible arguments to the 

contrary.) Further, comments focused 


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exclusively on section 706 authority 

neglect the direct role that sections 201 

and 202 will play in the overall 

regulatory framework we adopt, with 

respect to practices for or in connection 

with broadband Internet access service 

that are not directly governed by our 

rules. 

448. We are persuaded, in part, by 

arguments that we should forbear from 

sections 201 and/or 202 outside the 

open Internet context, although we 

reject calls to entirely forbear from 

applying sections 201 and 202 outside 

that context or that we otherwise adopt 

a more granular decision regarding 

forbearance from provisions in sections 

201 and/or 202. While open Internet 

considerations have led the Commission 

to revisit its prior decisions, our 

ultimate classification decision here 

simply acknowledges the reality of how 

these services are being offered today. 

(We thus reject claims that we somehow 

are using forbearance to increase 

regulation. Rather, we are using it to 

tailor the regulatory regime otherwise 

applicable to these telecommunications 

services.) Having classified BIAS as a 

telecommunications service, we 

exercise our forbearance authority to 

establish a tailored Title II regulatory 

framework that adequately protects 

consumers, ensures just and reasonable 

broadband provider conduct, and 

furthers the public interest—consistent 

with our goals of more, better, and open 

broadband. In addition, insofar as 

commenters cite the same arguments 

about past network investment or 

changes in performance or price per 

megabit in the recent past that we 

discussed above, we again find them 

sufficiently speculative and subject to 

debate that they do not overcome our 

forbearance analysis for sections 201 

and 202 above. Moreover, as we noted 

above, our decision not to forbear from 

applying sections 201 and 202 not only 

enables our open Internet regulatory 

framework but supports our grant of 

broad forbearance from other provisions 

and regulations, as discussed below. In 

particular, as discussed below, we find 

that our sections 201 and 202 authority 

provides a more flexible framework 

better suited to this marketplace than 

many of the alternative regulations that 

otherwise would apply. 

449. Nor do commenters adequately 

explain how forbearance could be 

tailored in these ways, at least in the 

context of case-by-case adjudication. For 

broadband providers’ interconnection 

practices, which are not covered by the 

open Internet rules we adopt today, we 

expressly rely on the backstop of 

sections 201 and 202 for case-by-case 

decision making. We also rely on both 

sections 201 and 202 for conduct that is 

covered by the open Internet rules 

adopted here. Those rules reflect the 

Commission’s interpretation of how 

sections 201 and 202 apply in that 

context, and thus the requirements of 

section 201 and 202 are coextensive as 

to broadband Internet access service 

covered by those rules. Commenters do 

not indicate, nor does the record 

otherwise reveal, an administrable way 

for the Commission to grant the 

requested partial forbearance while still 

pursuing such case-by-case decisions in 

the future. Further, while section 706 of 

the 1996 Act would remain, as well, we 

find that sections 201 and 202 provide 

a more certain foundation for evaluating 

providers’ conduct and pursuing 

enforcement if warranted in relevant 

circumstances arising in the future. We 

thus are not persuaded that even these 

more limited proposals for forbearance 

from provisions in sections 201 and/or 

202 as applied on a case-by-case basis 

would be in the public interest under 

section 10(a)(3). 

450. Although we conclude that the 

section 10 criteria are not met with 

respect to the full scope of forbearance 

that these commenters seek, because we 

do not and cannot envision adopting 

new ex ante rate regulation of 

broadband Internet access service in the 

future, we forbear from applying 

sections 201 and 202 to broadband 

services to that extent. As described 

above, our approach here is informed by 

the success of the CMRS framework, 

which has not, in practice, involved ex 

ante rate regulation. In addition, as 

courts have recognized, when exercising 

its section 10 forbearance authority 

‘‘[g]uided by section 706,’’ the 

Commission permissibly may ‘‘decide[ ] 

to balance the future benefits’’ of 

encouraging broadband deployment 

‘‘against [the] short term impact’’ from 

a grant of forbearance. Under the totality 

of the circumstances here, including the 

protections of our open Internet rules— 

which focus on what we identify and 

the most significant problems likely to 

arise regarding these broadband 

services—and our ability to address 

issues ex post under sections 201 and 

202 we do not find ex ante rate 

regulations necessary for purposes of 

section 10(a)(1) and (a)(2). Further, 

guided by section 706, and reflecting the 

tailored regulatory approach we adopt 

in this item, we find it in the public 

interest to forbear from applying 

sections 201 and 202 insofar as they 

would support the adoption of ex ante 

rate regulations for broadband Internet 

access service in the future. 

451. To the extent some commenters 

express concern about future rules that 

the Commission might adopt based on 

this section 201 and 202 authority, we 

cannot, and do not, envision going 

beyond our open Internet rules to adopt 

ex ante rate regulations based on that 

section 201 and 202 authority in this 

context. Consequently, we forbear from 

sections 201 and 202 in that respect, as 

discussed above. In this Order, we 

decide only that forbearance from 

sections 201 and 202 of the Act to 

broadband Internet access service is not 

warranted under section 10 to the extent 

described above. Indeed, we find here 

that the application of sections 201 and 

202 of the Act enable us to forbear from 

other requirements, including preexisting tariffing requirements and 

Commission rules governing rate 

regulation, which we find are not 

warranted here. Thus, any pre-existing 

rate regulations adopted by the 

Commission under its Title II 

authority—including any regulations 

adopted under sections 201 and 202— 

will not be imposed on broadband 

Internet access service as a result of this 

Order. Finally, while other types of 

rules also potentially could be adopted 

based on section 201 and 202 authority, 

any Commission rules adopted in the 

future would remain subject to judicial 

review under the APA. (In this regard, 

commenters advocating forbearance 

from sections 201 and 202 to guard 

against new rules that the Commission 

might adopt pursuant to that authority 

do not meaningfully explain what 

incremental benefit that would achieve 

given that any future Commission 

proceeding would be required to adopt 

such rules in any case.) 

2. Enforcement 

452. We also retain certain 

fundamental Title II enforcement 

provisions, as well as the Commission’s 

rules governing section 208 complaint 

proceedings. In particular, we decline to 

forbear from applying section 208 of the 

Act and the associated procedural rules, 

which provide a complaint process for 

enforcement of applicable provisions of 

the Act or any Commission rules. 

Section 208 permits ‘‘[a]ny person, any 

body politic, or municipal organization, 

or State commission, complaining of 

anything done or omitted to be done by 

any common carrier subject to this 

chapter in contravention of the 

provisions thereof’’ to file a complaint 

with the Commission and seek redress. 

We also retain additional statutory 

provisions that we find necessary to 

ensuring a meaningful enforcement 

process. In particular, we decline to 

forbear from sections 206, 207, and 209 

as a necessary adjunct to the section 208 

complaint process. As the Commission 


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has held previously, forbearing from 

sections 206, 207, and 209 ‘‘would 

eviscerate the protections of section 

208’’ because ‘‘[w]ithout the possibility 

of obtaining redress through collection 

of damages, the complaint remedy is 

virtually meaningless.’’ We similarly do 

not forbear from sections 216 and 217, 

which ‘‘merely extend the Title II 

obligations of [carriers] to their trustees, 

successors in interest, and agents. The 

sections were intended to ensure that a 

common carrier could not evade 

complying with the Act by acting 

through others over whom it has control 

or by selling its business.’’ Thus, we 

decline to forbear from enforcing these 

key Title II enforcement provisions with 

respect to broadband Internet access 

service. 

453. We find that forbearance from 

these key enforcement provisions and 

the associated procedural rules does not 

satisfy any of the section 10(a) criteria. 

As discussed above, we decline to 

forbear from enforcement of sections 

201 and 202 as they apply to broadband 

Internet access service. To make 

application of these provisions 

meaningful, the possibility of 

enforcement needs to be available. 

Consequently, insofar as we find above 

that sections 201 and 202 are necessary 

to guard against unjust, unreasonable, or 

unjustly or unreasonably discriminatory 

conduct by broadband providers and to 

protect consumers, that presumes the 

viability of enforcement. For these same 

reasons, forbearance from these key 

Title II enforcement provisions would 

not be in the public interest. Thus, our 

conclusion that section 10(a) is not met 

as to these key Title II enforcement 

provisions builds on our prior 

conclusion to that effect as to sections 

201 and 202. (Consistent with our 

analysis above, see supra para.447, 

although section 706 of the 1996 Act 

would remain, these Title II 

enforcement provisions provide a more 

certain foundation for pursuing 

enforcement if warranted in relevant 

circumstances arising in the future.) 

454. In the event that a carrier violates 

its common carrier duties, the section 

208 complaint process would permit 

challenges to a carrier’s conduct, and 

many commenters advocate for section 

208 to apply. The Commission’s 

procedural rules establish mechanisms 

to carry out that enforcement function 

in a manner that is well-established and 

clear for all parties involved. The 

Commission has never previously 

forborne from section 208. Indeed, we 

find it instructive that in the CMRS 

context Congress specifically precluded 

the Commission from using section 332 

to forbear from section 208. Commenters 

also observe the important 

interrelationship between section 208 

and sections 206, 207, 209, 216, and 

217, which the Commission itself has 

recognized in the past, as discussed 

above. In addition, to forbear from 

sections 216 and 217 would create a 

loophole in our ability to evenly enforce 

the Act, which would imperil our 

ability to protect consumers and to 

protect against unjust or unreasonable 

conduct, and would be contrary to the 

public interest. The prospect that 

carriers may be forced to defend their 

practices before the Commission 

supports the strong public interest in 

ensuring the reasonableness and nondiscriminatory nature of those actions, 

protecting consumers, and advancing 

our overall public interest objectives. 

(For the reasons discussed above, we 

thus reject the assertions of some 

commenters that enforcement is unduly 

burdensome. In particular, we are not 

persuaded that such concerns outweigh 

the overarching interest advanced by the 

enforceability of sections 201 and 202. 

Nothing in the record demonstrates that 

our need for enforcement differs among 

broadband providers based on their size, 

and we thus are not persuaded that a 

different conclusion in our forbearance 

analysis should be reached in the case 

of small broadband providers, for 

example.) While some commenters 

express fears of ‘‘threats of abusive 

litigation’’ or other burdens arising from 

the application of these provision, other 

commenters correctly note the 

speculative nature of those arguments 

given the lack of evidence of such 

actions where those provisions 

historically have applied (including in 

the CMRS context). In hearing section 

207 claims, courts have historically 

been careful to consider the 

Commission’s views as a matter of 

primary jurisdiction on the 

reasonableness of a practice under 

section 201(b), both in general and 

before awarding damages under section 

207. In a number of cases, courts have 

held that there is no entitlement to 

damages under section 207 for a claim 

under section 201(b) unless the 

Commission has already determined 

that a particular practice is 

‘‘unreasonable.’’ We endorse that 

approach here. At a minimum, we 

believe that courts reviewing BIAS 

practices under section 207 in the first 

instance should recognize the 

Commission’s primary jurisdiction in a 

context such as this. The doctrine of 

primary jurisdiction is particularly 

important here, because the broadband 

Internet ecosystem is highly dynamic 

and the Commission has carefully 

designed a regulatory framework for 

BIAS to protect Internet openness and 

other important communications 

network values without deterring 

broadband investment and innovation. 

As a result, for all of the forgoing 

reasons, we conclude that none of the 

section 10(a) criteria are met as to 

forbearance from these fundamental 

Title II enforcement provisions and the 

associated Commission procedural rules 

with respect to the broadband Internet 

access service. 

C. Forbearance Analysis Specific to 

Broadband Internet Access Service 

455. As discussed elsewhere, with 

respect to broadband Internet access 

service we find that the standard for 

forbearance is not met with respect to 

the following limited provisions: 

(a) Sections 201, 202, and 208, along with 

the related enforcement provisions of 

sections 206, 207, 209, 216, and 217, and the 

associated complaint procedures; and the 

Commission’s implementing regulations (but, 

to be clear, the Commission forbears from all 

ratemaking regulations adopted under 

sections 201 and 202); 

(b) Section 222, which establishes core 

customer privacy protections; 

(c) Section 224 and the Commission’s 

implementing regulations, which grant 

certain benefits that will foster network 

deployment by providing 

telecommunications carriers with regulated 

access to poles, ducts, conduits, and rightsof-way; 

(d) Sections 225, 255, and 251(a)(2), and 

the Commission’s implementing regulations, 

which collectively 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. These provisions and 

regulations support the provision of TRS and 

require providers of broadband Internet 

access service, as telecommunications 

carriers, to ensure that the service is 

accessible to and usable by individuals with 

disabilities, if readily achievable; and 

(e) Section 254, 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; the 

Commission forbears from immediate 

contributions requirements, however, in light 

of the ongoing Commission proceeding. 

456. We naturally also do not forbear 

from applying open Internet rules and 

section 706 of the 1996 Act itself. For 

convenience, we collectively refer to 

these provisions and regulations for 

purposes of this Order as the ‘‘core 

broadband Internet access service 

requirements.’’ 

457. Beyond those core broadband 

Internet access service requirements we 


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grant extensive forbearance as permitted 

by our authority under section 10 of the 

Act. As described in greater detail 

below, it is our predictive judgment that 

the statutory and regulatory 

requirements that remain are sufficient 

to ensure just, reasonable, and not 

unjustly or unreasonably discriminatory 

conduct by providers of broadband 

Internet access service and to protect 

consumers with respect to broadband 

Internet access service. Those same 

considerations, plus the overlay of 

section 706 of the 1996 Act and our 

desire to proceed incrementally when 

considering what new requirements that 

should apply here, likewise persuade us 

that this forbearance is in the public 

interest. 

458. Our forbearance decision in this 

subsection focuses on addressing 

consequences arising from the 

classification decision in this Order 

regarding broadband Internet access 

service. (The 2014 Open Internet NPRM 

here did not contemplate possible 

forbearance from the open Internet rules 

themselves, and thus they are beyond 

the scope of regulations addressed by 

this forbearance decision. In any case, 

the very reasons that persuade us to 

adopt the rules in the Order likewise 

demonstrate that forbearance from those 

rules would not satisfy the section 10(a) 

criteria here.) Thus, we do not forbear 

with respect to requirements to the 

extent that they already applied prior to 

this Order without regard to the 

classification of broadband Internet 

access service. For example, as 

discussed in greater detail below, this 

includes things like certain 

requirements of the Twenty-First 

Century Communications and Video 

Accessibility Act of 2010 (CVAA), as 

well as things like liability-limitation 

provisions that do not vary in 

application based on the classification 

of broadband Internet access service. 

Similarly, to the extent that provisions 

or regulations apply to an entity by 

virtue of other services it provides 

besides broadband Internet access 

service, the forbearance in this Order 

does not extend to that context. (This 

Order does not alter any additional or 

broader forbearance previously granted 

that already might encompass 

broadband Internet access service in 

certain circumstances, for example, 

insofar as broadband Internet access 

service, when provided by mobile 

providers, is a CMRS service. As one 

example, the Commission has granted 

some forbearance from section 310(d) 

for certain wireless licensees that meet 

the definition of ‘‘telecommunications 

carrier,’’ but section 310(d) is not itself 

framed in terms of ‘‘common carriers’’ 

or ‘‘telecommunications carriers’’ or 

providers of ‘‘CMRS’’ or the like, nor is 

it framed in terms of ‘‘common carrier 

services,’’ ‘‘telecommunications 

services,’’ ‘‘CMRS services’’ or the like. 

To the extent that such forbearance thus 

goes beyond the forbearance for wireless 

providers granted in this Order, this 

Order does not narrow or otherwise 

modify that pre-existing grant of 

forbearance. For clarity, we observe, 

however, that the broadband Internet 

access service covered by our open 

Internet rules is beyond the scope of a 

petition for forbearance from Verizon 

regarding certain broadband services 

that was deemed granted by operation of 

law on March 19, 2006.) 

459. In addition, prior to this Order 

some incumbent local exchange carriers 

or other common carriers chose to offer 

Internet transmission services as 

telecommunications services subject to 

the full range of Title II requirements. 

Our forbearance with respect to 

broadband Internet access service does 

not encompass such services. As a 

result, such providers remain subject to 

the rights and obligations that arise 

under Title II and the Commission’s 

rules by virtue of their elective 

provision of such services, (For 

example, if a rate-of-return incumbent 

LEC (or other provider) voluntarily 

offers Internet transmission outside the 

forbearance framework adopted in this 

Order, it remains subject to the preexisting Title II rights and obligations, 

including those from which we forbear 

in this Order.) along with the rules 

adopted to preserve and protect the 

open Internet to the extent that those 

services fall within the scope of those 

rules. (If such a provider wants to 

change to offer Internet access services 

pursuant to the construct adopted in 

this Order, it should notify the Wireline 

Competition Bureau 60 days prior to 

implementing such a change.) 

1. Provisions That Protect Customer 

Privacy, Advance Access for Persons 

With Disabilities, and Foster Network 

Deployment 

460. We generally grant extensive 

forbearance from the provisions and 

requirements that newly apply by virtue 

of our classification of broadband 

Internet access service. However, the 

record persuades us that we should not 

forbear with respect to certain key 

provisions that protect customer 

privacy, advance access for persons 

with disabilities, and foster network 

deployment. 

a. Customer Privacy (Section 222) 

461. As supported by a number of 

commenters, we decline to forbear from 

applying section 222 of the Act in the 

case of broadband Internet access 

service. We do, however, find the 

section 10(a) criteria met to forbear at 

this time from applying our 

implementing rules, pending the 

adoption of rules to govern broadband 

Internet access service in a separate 

rulemaking proceeding. Section 222 of 

the Act 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 provided protections for 

proprietary information, according the 

category of customer proprietary 

network information (CPNI) the greatest 

level of protection. Section 222 imposes 

a duty on every telecommunications 

carrier to protect the confidentiality of 

its customers’ private information. 

Section 222 also imposes restrictions on 

carriers’ ability to use, disclose, or 

permit access to customers’ CPNI 

without their consent. 

462. We find that forbearance from 

the application of section 222 with 

respect to broadband Internet access 

service is not in the public interest 

under section 10(a)(3), and that section 

222 remains necessary for the protection 

of consumers under section 10(a)(2). 

The Commission has long supported 

protecting the privacy of users of 

advanced services, and retaining this 

provision thus is consistent with the 

general policy approach. The 

Commission has emphasized that 

‘‘[c]onsumers’ privacy needs are no less 

important when consumers 

communicate over and use broadband 

Internet access than when they rely on 

[telephone] services.’’ As broadband 

Internet access service users access and 

distribute information online, the 

information is sent through their 

broadband provider. Broadband 

providers serve as a necessary conduit 

for information passing between an 

Internet user and Internet sites or other 

Internet users, and are in a position to 

obtain vast amounts of personal and 

proprietary information about their 

customers. Absent appropriate privacy 

protections, use or disclosure of that 

information could be at odds with those 

customers’ interests. 

463. We find that if consumers have 

concerns about the privacy of their 

personal information, such concerns 

may restrain them from making full use 

of broadband Internet access services 

and the Internet, thereby lowering the 


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likelihood of broadband adoption and 

decreasing consumer demand. As the 

Commission has found previously, the 

protection of customers’ personal 

information may spur consumer 

demand for those services, in turn 

‘‘driving demand for broadband 

connections, and consequently 

encouraging more broadband 

investment and deployment’’ consistent 

with the goals of the 1996 Act. Notably, 

commenters opposing the application of 

section 222 to broadband Internet access 

service make general arguments about 

the associated burdens, but do not 

include a meaningful analysis of why 

the section 10(a) criteria are met (or why 

relief otherwise should be granted) nor 

why the concerns they identify—even 

assuming arguendo that they were borne 

out by evidence beyond that currently 

in the record—should outweigh the 

privacy concerns identified here. We 

therefore conclude that the application 

and enforcement of section 222 to 

broadband Internet access services is in 

the public interest, and necessary for the 

protection of consumers. (We are not 

persuaded that those arguments justify a 

different outcome here, both for the 

reasons discussed previously, and 

because commenters do not 

meaningfully explain how these 

arguments impact the section 10 

analysis here, given that the need to 

protect consumer privacy is not selfevidently linked to such marketplace 

considerations. Nothing in the record 

suggests that concerns about consumer 

privacy are limited to broadband 

providers of a particular size, and we 

thus are not persuaded that a different 

conclusion in our forbearance analysis 

should be reached in the case of small 

broadband providers, for example.) 

464. We also reject arguments that 

section 706 itself provides adequate 

protections such that forbearance from 

section 222 is warranted. While section 

706 of the 1996 Act would continue to 

apply even if we granted forbearance 

here, we find that section 222 provides 

a more certain foundation for evaluating 

providers’ conduct and pursuing 

enforcement if warranted in relevant 

circumstances arising in the future. (We 

also note, for example, that this 

approach obviates the need to determine 

whether or to what extent section 222 is 

more specific than section 706 of the 

1996 Act in relevant respects, and thus 

could be seen as exclusively governing 

over the provisions of section 706 of the 

1996 Act as to some set of privacy 

issues. The approach we take avoids 

this potential uncertainty, and we thus 

need not and do not address this 

question.) Among other things, while 

the concerns discussed in the preceding 

paragraph have a nexus with the 

standards of sections 706(a) and (b), as 

discussed earlier in this section, the 

public interest in protecting customer 

privacy is not limited to the universe of 

concerns encompassed by section 706. 

465. We recognize that some 

commenters, while expressing concern 

about consumer privacy, nonetheless 

suggest that the Commission 

conceivably need not immediately 

apply section 222 and its implementing 

rules, pending further proceedings. 

(While CDT references the questions 

regarding the application of section 222 

and our implementing rules raised in 

the 2010 Broadband Classification NOI, 

that NOI cited reasons why the 

Commission might immediately apply 

section 222 and the Commission’s 

implementing rules if it reclassified 

broadband Internet access service as 

well as reasons why it might defer the 

application of those requirements. We 

thus find that the 2010 NOI does not 

itself counsel one way or the other, and 

in light of the record here, we decline 

to defer the application of section 222) 

We are persuaded by those arguments, 

but only as to the Commission’s rules. 

With respect to the application of 

section 222 of the Act itself, as 

discussed above, with respect to 

broadband Internet access service the 

record here persuades us that the 

section 10(a) forbearance criteria are not 

met to justify such relief. Indeed, even 

as to services that historically have been 

subject to section 222, questions about 

the application of those privacy 

requirements can arise and must be 

dealt with by the Commission as 

technology evolves, and the record here 

does not demonstrate specific concerns 

suggesting that Commission clarification 

of statutory terms as needed would be 

inadequate in this context. 

466. We are, however, persuaded that 

the section 10(a) criteria are met for us 

to grant forbearance from applying our 

rules implementing section 222 insofar 

as they would be triggered by the 

classification of broadband Internet 

access service here. Beyond the core 

broadband Internet access service 

requirements, we apply section 222 of 

the Act, which itself directly provides 

important privacy protections. Further, 

on this record, we are not persuaded 

that the Commission’s current rules 

implementing section 222 necessarily 

would be well suited to broadband 

Internet access service. The Commission 

fundamentally modified these rules in 

various ways subsequent to decisions 

classifying broadband Internet access 

service as an information service, and 

certain of those rules appear more 

focused on concerns that have been 

associated with voice service. For 

example, the current rules have 

requirements with respect to ‘‘call detail 

information,’’ defined as ‘‘[a]ny 

information that pertains to the 

transmission of specific telephone calls, 

including, for outbound calls, the 

number called, and the time, location, 

or duration of any call and, for inbound 

calls, the number from which the call 

was placed, and the time, location, or 

duration of any call.’’ More generally, 

the existing CPNI rules do not address 

many of the types of sensitive 

information to which a provider of 

broadband Internet access service is 

likely to have access, such as (to cite 

just one example) customers’ web 

browsing history. Insofar as rules 

focused on addressing problems in the 

voice service context are among the 

central underpinnings of our CPNI 

rules, we find the better course to be 

forbearance from applying all of our 

CPNI rules at this time. As courts have 

recognized, when exercising its section 

10 forbearance authority ‘‘[g]uided by 

section 706,’’ the Commission 

permissibly may ‘‘decide[ ] to balance 

the future benefits’’ of encouraging 

broadband deployment ‘‘against [the] 

short term impact’’ from a grant of 

forbearance. In light of the record here 

and given that the core broadband 

Internet access requirements and section 

222 itself will apply, and guided by 

section 706, we find that applying our 

current rules implementing sections 

222—which, in critical respects, appear 

to be focused on addressing problems 

that historically arise regarding voice 

service—is not necessary to ensure just 

and reasonable rates and practice or for 

the protection of consumers under 

sections 10(a)(1) and (a)(2) and that 

forbearance is in the public interest 

under section 10(a)(3). We emphasize, 

however, that forbearance from our 

existing CPNI rules in the context of 

broadband Internet access services does 

not in any way diminish the 

applicability of these rules to services 

previously found to be within their 

scope. 

b. Disability Access Provisions (Sections 

225, 255, 251(a)(2)) 

467. We agree with commenters that 

we should apply section 225 and the 

Commission’s implementing rules— 

rather than forbear for broadband 

Internet access service—because of the 

need to ensure meaningful access to all 

Americans, except to the extent 

provided below with respect to 

contributions to the Interstate TRS 

Fund. Section 225 mandates the 

availability of interstate and intrastate 


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TRS to the extent possible and in the 

most efficient manner to individuals in 

the United States who are deaf, hard of 

hearing, deaf-blind, and who have 

speech disabilities. The Act directs that 

TRS provide the ability for such 

individuals to engage in communication 

with other individuals, in a manner that 

is ‘‘functionally equivalent to the ability 

of a hearing individual who does not 

have a speech disability to communicate 

using voice communication services.’’ 

To achieve this, the Commission has 

required all interstate service providers 

(other than one-way paging services) to 

provide TRS. People who are blind, 

hard of hearing, deaf-blind, and who 

have speech disabilities increasingly 

rely upon Internet-based video 

communications, both to communicate 

directly (point-to-point) with other 

persons who are deaf or hard of hearing 

who use sign language and through 

video relay service (VRS) with 

individuals who do not use the same 

mode of communication that they do. In 

doing so, they rely on high definition 

two-party or multiple-party video 

conferencing that necessitates a 

broadband connection. As technologies 

advance, section 225 maintains our 

ability to ensure that individuals who 

are deaf, hard of hearing, deaf-blind, 

and who have speech disabilities can 

engage in service that is functionally 

equivalent to the ability of a hearing 

individuals who do not have speech 

disabilities to use voice communication 

services. Limits imposed on bandwidth 

use through network management 

practices that might otherwise appear 

neutral, could have an adverse effect on 

iTRS users who use sign language to 

communicate by degrading the 

underlying service carrying their video 

communications. The result could 

potentially deny these individuals 

functionally equivalent communications 

service. Additionally, if VRS and other 

iTRS users are limited in their ability to 

use Internet service or have to pay extra 

for iTRS and point-to-point services, 

this could cause discrimination against 

them because for many such 

individuals, TRS is the only form of 

communication that affords service that 

is functionally equivalent to what voice 

users have over the telephone. 

Moreover, limiting their bandwidth 

capacity could compromise their ability 

to obtain access to emergency services 

via VRS and other forms of iTRS, which 

is required by the Commission’s rules 

implementing section 225. 

468. While we base the open Internet 

rules adopted here solely on section 706 

of the 1996 Act and other provisions of 

the Act besides section 225—and thus 

do not adopt any new section 225-based 

rules in this Order—largely preserving 

this provision is important not only to 

the extent that it might be used in the 

future as the basis for new rules 

adopting additional protections but also 

to avoid any inadvertent uncertainty 

regarding Internet-based TRS providers’ 

obligations under existing rules. To be 

compensated from the federal TRS fund, 

providers must provide service in 

compliance with section 225 and the 

Commission’s TRS rules and orders. As 

discussed in the prior paragraph, 

however, a number of TRS services are 

carried via users’ broadband Internet 

access services. Forbearing from 

applying section 225 and our TRS 

service requirements would risk 

creating loopholes in the protections 

otherwise afforded users of iTRS 

services or even just uncertainty that 

might result in degradation of iTRS. 

More specifically, if we forbear from 

applying these provisions, we run the 

risk of allowing actions taken by 

Internet access service providers to 

come into conflict with the overarching 

goal of section 225, i.e., ensuring that 

the communication services made 

available through TRS are functionally 

equivalent, that is, mirror as closely as 

possible the voice communication 

services available to the general public. 

Enforcement of this functional 

equivalency mandate will protect 

against such degradation of service. In 

sum, with the exception of TRS 

contribution requirements discussed 

below, we find that the enforcement of 

section 225 is necessary for the 

protection of consumers under section 

10(a)(2), and that forbearance would not 

be in the public interest under section 

10(a)(3). 

469. Notwithstanding the foregoing, 

for now we do forbear in part from the 

application of TRS contribution 

obligations that otherwise would newly 

apply to broadband Internet access 

service. Section 225(d)(3)(B) and our 

implementing rules require federal TRS 

contributions for interstate 

telecommunications services, which 

now would uniformly include 

broadband Internet access service by 

virtue of the classification decision in 

this order. Applying new TRS 

contribution requirements on broadband 

Internet access potentially could spread 

the base of contributions to the TRS 

Fund, having the benefit of adding to 

the stability of the TRS Fund. 

Nevertheless, before taking any steps 

that would depart from the status quo 

in this regard, the Commission would 

like to assess the need for such 

additional funding, and the appropriate 

contribution level, given the totality of 

concerns implicated in this context. As 

courts have recognized, when exercising 

its section 10 forbearance authority 

‘‘[g]uided by section 706,’’ the 

Commission permissibly may ‘‘decide[ ] 

to balance the future benefits’’ of 

encouraging broadband deployment 

‘‘against [the] short term impact’’ from 

a grant of forbearance. Our decision, 

guided by section 706, to tailor the 

regulations applied to broadband 

Internet access service thus tips the 

balance in favor of the finding that 

applying new TRS fund contribution 

requirements at this time is not 

necessary to ensure just, reasonable and 

nondiscriminatory conduct by the 

provider of broadband Internet access 

service or for the protection of 

consumers under sections 10(a)(1) and 

(a)(2) and that forbearance is in the 

public interest under section 10(a)(3). 

The competing considerations here 

make this a closer call under our section 

10(a) analysis, however, and thus we 

limit our action only to forbearing from 

applying section 225(d)(3)(B) and our 

implementing rules insofar as they 

would immediately require new TRS 

contributions from broadband Internet 

access services but not insofar as they 

authorize the Commission to require 

such contributions should the 

Commission elect to do so in a 

rulemaking in the future. In particular, 

we find it in the public interest to limit 

our forbearance in this manner to enable 

us to act even more nimbly in the future 

should we need to do so based on future 

developments. 

470. Nothing in our forbearance from 

TRS Fund contribution requirements for 

broadband Internet access service is 

intended to encompass, however, 

situations where incumbent local 

exchange carriers or other common 

carriers voluntarily choose to offer 

Internet transmission services as 

telecommunications services subject to 

the full scope of Title II requirements for 

such services. As a result, such 

providers remain subject to the 

Interstate TRS Fund contribution 

obligations that arise under section 225 

and the Commission’s rules by virtue of 

their elective provision of such services 

until such time as the Commission 

further addresses such contributions in 

the future. 

471. Consistent with some 

commenters’ proposals, with respect to 

broadband Internet access service we 

also do not forbear from applying 

sections 255 and the associated rules, 

which require telecommunications 

service providers and equipment 

manufacturers to make their services 

and equipment accessible to individuals 


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with disabilities, unless not readily 

achievable. We also do not find the 

statutory forbearance test met for related 

protections afforded under section 

251(a)(2) and our implementing rules, 

which precludes the installation of 

‘‘network features, functions, or 

capabilities that do not comply with the 

guidelines and standards established 

pursuant to section 255.’’ We therefore 

do not forbear from this provision and 

our associated rules. In prior 

proceedings, the Commission has 

emphasized its commitment to 

implementing the important policy 

goals of section 255 in the Internet 

service context. Evidence cited in the 

National Broadband Plan also 

demonstrated that, while broadband 

adoption has grown steadily, it ‘‘lags 

considerably’’ among certain groups, 

including individuals with disabilities. 

Adoption of Internet access services by 

persons with disabilities can enable 

these individuals to achieve greater 

productivity, independence, and 

integration into society in a variety of 

ways. (Moreover, broadband can make 

telerehabilitation services possible, by 

providing long-term health and 

vocational support within the 

individual’s home. Broadband can also 

provide increased access to online 

education classes and digital books and 

will offer real time interoperable voice, 

video and text capabilities for E911. In 

addition, as commenters note, ‘‘society 

as a whole’’ can ‘‘benefit[] when people 

with disabilities have access to 

[broadband Internet access] services in a 

manner equivalent to the non-disabled 

population.’’ CFILC Dec. 17, 2014 Ex 

Parte Letter at 1.) These capabilities, 

however, are not available to persons 

with disabilities if they face barriers to 

Internet service usage, such as 

inaccessible hardware, software, or 

services. We anticipate that increased 

adoption of services and technologies 

accessible to individuals with 

disabilities will, in turn, spur further 

availability of such capabilities, and of 

Internet access services more generally. 

472. Our forbearance analysis 

regarding sections 255, 251(a)(2), and 

our implementing rules also is informed 

by the incremental nature of the 

requirements imposed. In particular, the 

Twenty-First Century Communications 

and Video Accessibility Act of 2010 

(CVAA), expanding beyond the thenexisting application of section 255, 

adopted new section 716 of the Act, 

which requires that providers of 

advanced communications services 

(ACS) and manufacturers of equipment 

used for ACS make their services and 

products accessible to people with 

disabilities, unless it is not achievable to 

do so. These mandates already apply 

according to their terms in the context 

of broadband Internet access service. 

The CVAA also adopted a requirement, 

in section 718, that ensures access to 

Internet browsers in wireless phones for 

people who are blind and visually 

impaired. In addition, the CVAA directs 

the Commission to enact regulations to 

prescribe, among other things, that 

networks used to provide ACS ‘‘may not 

impair or impede the accessibility of 

information content when accessibility 

has been incorporated into that content 

for transmission through . . . networks 

used to provide [ACS].’’ Finally, new 

section 717 creates new enforcement 

and recordkeeping requirements 

applicable to sections 255, 716, and 718. 

Thus, a variety of accessibility 

requirements already have applied in 

the context of broadband Internet access 

service under the CVAA. 

473. We are persuaded by the record 

of concerns about accessibility in the 

context of broadband Internet access 

service that we should not rest solely on 

the protections of the CVAA, however. 

But we do clarify the interplay of those 

provisions. At the time of section 255’s 

adoption in the 1996 Act, Congress 

stated its intent to ‘‘foster the design, 

development, and inclusion of new 

features in communications 

technologies that permit more ready 

accessibility of communications 

technology by individuals with 

disabilities . . . as preparation for the 

future given that a growing number of 

Americans have disabilities.’’ More 

recently, Congress adopted the CVAA 

after recognizing that since it added 

section 255 to the Communications Act, 

‘‘Internet-based and digital technologies 

. . . driven by growth in broadband 

. . . are now pervasive, offering 

innovative and exciting ways to 

communicate and share information.’’ 

Congress thus clearly had Internet-based 

communications technologies in mind 

when enacting the accessibility 

provisions of sections section 716 (as 

well as the related provisions of sections 

717 through 718), and in providing 

important protections with respect to 

ACS. Thus, insofar as there is any 

conflict between the requirements of 

sections 255, 251(a)(2), and our 

implementing rules, on the one hand, 

and sections 716 through 718 and our 

implementing rules on the other hand, 

we interpret the latter requirements as 

controlling. On the other hand, insofar 

as sections 255, 251(a)(2), and our 

implementing rules impose different 

requirements that are reconcilable with 

the CVAA, we find it appropriate to 

apply those additional protections in 

the context of broadband Internet access 

service for the reasons described above. 

(We recognize that the Commission 

previously has held that ‘‘[s]ection 2(a) 

of the CVAA exempts entities, such as 

Internet service providers, from liability 

for violations of section 716 when they 

are acting only to transmit covered 

services or to provide an information 

location tool. Thus, service providers 

that merely provide access to an 

electronic messaging service, such as a 

broadband platform that provides an 

end user with access to a web-based 

email service, are excluded from the 

accessibility requirements of section 

716.’’ Our decision here is not at odds 

with Congress’ approach to such 

services under the CVAA, however, 

because we also have found that 

‘‘relative to section 255, section 716 

requires a higher standard of 

achievement for covered entities.’’ Thus, 

under our decision here, broadband 

Internet access service will remain 

excluded from the ‘‘higher standard of 

achievement’’ required by the CVAA to 

the extent provided by that law, and 

instead will be subject to the lower 

standard imposed under section 255 in 

those cases where the CVAA does not 

apply.) Thus, for example, outside the 

self-described scope of the CVAA, 

providers of broadband Internet access 

services must ensure that network 

services and equipment do not impair or 

impede accessibility pursuant to the 

sections 255/251(a)(2) framework. 

(Because this section requires pass 

through of telecommunications in an 

accessible format, and 47 CFR 14.20(c) 

requires pass through of ACS in an 

accessible format, the two sections work 

in tandem with each other, and 

forbearance from sections 255 and 

251(a)(2) would therefore result in a 

diminution of accessibility.) In 

particular, we find that these provisions 

and regulations are necessary for the 

protection of consumers and 

forbearance would not be in the public 

interest. (We recognize that section 716 

provides that ‘‘[t]he requirements of this 

section shall not apply to any 

equipment or services, including 

interconnected VoIP service, that are 

subject to the requirements of section 

255 of this title on the day before 

October 8, 2010. Such services and 

equipment shall remain subject to the 

requirements of section 255 of this 

title.’’ 47 U.S.C. 617(f). We do not read 

that as requiring that section 716 must 

necessarily be mutually exclusive with 

section 255, however. Had Congress 

wished to achieve that result, it easily 

instead could have stated that ‘‘the 


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requirements of this section shall not 

apply to any equipment or services . . . 

that are subject to the requirements of 

section 255’’ (or vice versa) and left it 

at that. By also including the limiting 

language ‘‘that are subject to the 

requirements of section 255 of this title 

on the day before October 8, 2010,’’ we 

believe the statute reasonably is 

interpreted as leaving open the option 

that services that become subject to 

section 255 thereafter also could be 

subject to both the requirements of 

section 255 and the requirements of the 

CVAA. Indeed, although broadband 

Internet access previously was classified 

as an information service and thus not 

subject to section 255 on October 8, 

2010, at the time the CVAA was enacted 

the Commission had initiated the 2010 

NOI to consider whether to reclassify 

that service as a telecommunications 

service, which would, at that time, 

become subject to section 255 as a 

default matter.) 

474. We reject the cursory or 

generalized arguments of some 

commenters that we need not apply 

these protections, or that we might defer 

doing so, pending further proceedings. 

For the reasons discussed above, with 

respect to broadband Internet access 

service the record here persuades us 

that the application of these 

requirements is necessary for the 

protection of consumers under section 

10(a)(2) and that forbearance is not in 

the public interest under section 

10(a)(3). Nor are we otherwise 

persuaded to stay or waive our 

implementing rules based on this 

record. Commenters opposing the 

application of these protections with 

respect to broadband Internet access 

service either with no limit on time, or 

specifically in the near term, make 

general arguments about the associated 

burdens. However, they do not include 

a meaningful analysis of why the 

section 10(a) criteria are met (or why 

relief otherwise should be granted) nor 

why the concerns they identify—even 

assuming arguendo that they were borne 

out by evidence beyond that currently 

in the record—should outweigh the 

disability access concerns identified 

here. (Some commenters contend that 

the Commission should forbear from all 

of Title II based on generalized 

arguments about the marketplace, such 

as past network investment or changes 

in performance or price per megabit in 

the recent past. We are not persuaded 

that those arguments justify a different 

outcome as to any of the disability 

access provisions or requirements at 

issue in this section, both for the 

reasons discussed previously, and 

because commenters do not 

meaningfully explain how these 

arguments impact the section 10 

analysis here, given that the need to 

protect disability access is not selfevidently linked to such marketplace 

considerations. Nothing in the record 

suggests that concerns about disability 

access are limited to broadband 

providers of a particular size, and we 

thus are not persuaded that a different 

conclusion in our forbearance analysis 

should be reached in the case of small 

broadband providers, for example.) 

475. We also reject arguments that 

section 706 itself provides adequate 

protections such that forbearance from 

the disability access provisions of 

sections 225, 255 and 251(a)(2) and 

associated regulations is warranted. 

While section 706 of the 1996 Act 

would continue to apply even if we 

granted forbearance here, consistent 

with our conclusions in other sections, 

we find that these disability access 

provisions provide a more certain 

foundation for evaluating providers’ 

conduct and pursuing enforcement if 

warranted in relevant circumstances 

arising in the future. (We also note, for 

example, that this approach obviates the 

need to determine whether or to what 

extent these disability access provisions 

are more specific than section 706 of the 

1996 Act in relevant respects, and thus 

could be seen as exclusively governing 

over the provisions of section 706 of the 

1996 Act as to some set of disability 

access issues. The approach we take 

avoids this potential uncertainty, and 

we thus need not and do not address 

this question.) Among other things, 

while our interest in ensuring disability 

access often may have a nexus with the 

standards of sections 706(a) and (b), the 

record does not reveal that the public 

interest in ensuring access for persons 

with disabilities is limited just to the 

universe of concerns encompassed by 

section 706. 

476. In addition to the provisions 

discussed above, section 710 of the Act 

addresses hearing aid compatibility. 

Given the important additional 

protections for persons with disabilities 

enabled by this provision, (For reasons 

similar to those discussed in the text 

above regarding other disability access 

provisions, we do not find it in the 

public interest to grant forbearance from 

section 710 of the Act, nor do we find 

such forbearance otherwise warranted 

under the section 10(a) criteria.) we 

anticipate addressing the applicability 

of mobile wireless hearing aid 

compatibility requirements to mobile 

broadband Internet access service 

devices in the pending rulemaking 

proceeding. (We note that the 

Commission’s existing implementing 

rules do not immediately impose the 

Commission’s hearing aid compatibility 

requirements implementing section 710 

of the Act on mobile wireless broadband 

providers by virtue of the classification 

decisions in this Order. We note, 

however, that certain obligations in the 

Commission’s rules implementing 

section 255 addressing interference with 

hearing technologies and the effective 

wireless coupling to hearing aids, may 

be appropriately imposed on such 

providers by virtue of this Order, given 

our decision not to forbear from 

application of section 255 and its 

implementing regulations.) 

c. Access to Poles, Ducts, Conduit and 

Rights-of-Way (section 224) 

477. Consistent with the 

recommendations of certain broadband 

provider commenters, because we find 

that the section 10(a) criteria are not 

met, we decline to forbear from 

applying section 224 and the 

Commission’s associated rules with 

respect to broadband Internet access 

service. Section 224 of the Act governs 

the Commission’s regulation of pole 

attachments. The Commission has 

recognized repeatedly the importance of 

pole attachments to the deployment of 

communications networks, and we thus 

conclude that applying these provisions 

will help ensure just and reasonable 

rates for broadband Internet access 

service by continuing pole access and 

thereby limiting the input costs that 

broadband providers otherwise would 

need to incur. Leveling the pole 

attachment playing field for new 

entrants that offer solely broadband 

services also removes barriers to 

deployment and fosters additional 

broadband competition. For similar 

reasons we find that applying these 

provisions will protect consumers and 

advance the public interest under 

sections 10(a)(2) and (a)(3). (Some 

commenters contend that the 

Commission should forbear from all of 

Title II based on generalized arguments 

about the marketplace, such as past 

network investment or changes in 

performance or price per megabit in the 

recent past. We are not persuaded that 

those arguments justify a different 

outcome regarding section 224 and our 

associated rules, both for the reasons 

discussed previously, and because 

commenters do not meaningfully 

explain how these arguments impact the 

section 10 analysis here, given that the 

need for regulated access to access to 

poles, ducts, conduit, and rights-of-way 

is not self-evidently linked to such 

marketplace considerations. Nor does 

the record reveal that concerns about 


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adequate access to poles, ducts, conduit 

and rights-of-way are limited to 

broadband providers of a particular size, 

and we thus are not persuaded that 

these concerns would differ in the case 

of small broadband providers, for 

example.) 

478. Further, in significant part, 

section 224 imposes obligations on 

utilities, as owners of poles, ducts, 

conduits, or rights-of-way, to ensure that 

cable operators and telecommunications 

carriers obtain access to poles on just, 

reasonable, and nondiscriminatory 

rates, terms and conditions. The 

definition of a utility, however, includes 

entities other than telecommunications 

carriers, and pole attachments 

themselves are not 

‘‘telecommunications services.’’ Section 

10 allows the Commission to forbear 

from statutory requirements and 

implementing regulations as applied to 

‘‘a telecommunications carrier or 

telecommunications service,’’ or class 

thereof, if the statutory criteria are 

satisfied. To the extent that section 224 

imposes obligations on entities other 

than telecommunications carriers, it is 

not within the Commission’s authority 

to forbear from this provision and our 

implementing rules under section 10. 

479. Moreover, even if the 

Commission could forbear from the 

entirety of section 224 notwithstanding 

the concerns with such forbearance 

noted above, it is doubtful that this 

approach would leave us with authority 

to regulate the rates for attachments 

used for broadband Internet access 

service. In particular, such forbearance 

seemingly would eliminate any 

requirements governing pole owners’ 

rates for access to poles by 

telecommunications carriers or cable 

operators. Such an outcome would not 

serve the public interest. 

480. We also are not persuaded that 

we could forbear exclusively from the 

telecom rate formula in section 224(e), 

and then adopt a lower rate—such as 

the cable rate—pursuant to section 

224(b). In particular, applying the 

‘specific governs the general’ canon of 

statutory interpretation, the Supreme 

Court interpreted the rate formulas in 

sections 224(d) and (e) as controlling, 

within their self-described scope, over 

the Commission’s general authority to 

ensure just and reasonable rates for pole 

attachments under section 224(b). We 

question whether forbearing from 

applying section 224(e) would actually 

alter the scope of our authority under 

section 224(b), or if instead rates for 

carriers’ telecommunications service 

attachments would remain governed by 

the (now forborne-from) section 224(e), 

leaving a void as to regulation of rates 

for such attachments. Further, 

attempting to use an approach like this 

to regulate pole rental rates more 

stringently to achieve lower rates, the 

Commission seemingly would be using 

forbearance to increase regulation. 

Given the deregulatory purposes 

underlying the adoption of section 10, 

we do not believe that the use of 

forbearance in that manner would be in 

the public interest. 

481. Although we are not persuaded 

that forbearance would be appropriate 

to address these concerns, we are 

committed to avoiding an outcome in 

which entities misinterpret today’s 

decision as an excuse to increase pole 

attachment rates of cable operators 

providing broadband Internet access 

service. To be clear, it is not the 

Commission’s intent to see any increase 

in the rates for pole attachments paid by 

cable operators that also provide 

broadband Internet access service, and 

we caution utilities against relying on 

this decision to that end. This Order 

does not itself require any party to 

increase the pole attachment rates it 

charges attachers providing broadband 

Internet access service, and we would 

consider such outcomes unacceptable as 

a policy matter. 

482. We note in this regard that in the 

2011 Pole Attachment Order, the 

Commission undertook comprehensive 

reform of pole attachment rules— 

including by revising the 

telecommunications rate formula for 

pole attachments in a way that 

‘‘generally will recover the same portion 

of pole costs as the current cable rate.’’ 

As NCTA, COMPTEL and tw telecom 

observed following that Order, the 

Commission’s ‘‘expressed intent of 

providing rate parity between 

telecommunications providers and cable 

operators by amending the 

telecommunications formula to produce 

rates comparable to the cable formula— 

thereby removing the threat of potential 

rate increases associated with new 

services and reducing the incentives for 

pole owners to dispute the legal 

classification of communications 

services—will provide much-needed 

regulatory certainty that will permit 

broadband providers to extend their 

networks to unserved communities 

while fairly compensating pole 

owners.’’ However, these parties also 

expressed concern that the particular 

illustration used by the Commission in 

the rule text could be construed as 

suggesting that the new formula 

includes only instances where there are 

three and five attaching entities, rather 

than providing the ‘‘corresponding cost 

adjustments scaled to other entity 

counts.’’ We are concerned by any 

potential undermining of the gains the 

Commission achieved by revising the 

pole attachment rates paid by 

telecommunications carriers. We 

accordingly will be monitoring 

marketplace developments following 

this Order and can and will promptly 

take further action in that regard if 

warranted. 

483. To the extent that there is a 

potential for an increase in pole 

attachment rates for cable operators that 

also provide broadband Internet access 

service, we are highly concerned about 

its effect on the positive investment 

incentives that arise from new 

providers’ access to pole infrastructure. 

We are encouraged by entry into the 

marketplace of parties that offer 

broadband Internet access service, and 

we believe that providing these new 

parties with access to pole infrastructure 

under section 224 would outweigh any 

hypothetical rise in pole attachment 

rates for some incumbent cable 

operators in some circumstances 

—particularly in light of our expressed 

intent to take prompt action if necessary 

to address the application of the 

Commission’s pole rental rate formulas 

in a way that removes any doubt 

concerning the advancement of the 

goals intended by our 2011 reforms. 

Moreover, subsumed within our finding 

that today’s decision does not justify 

any increase in pole attachment rates is 

an emphatic conclusion that no utility 

could impose any increase retroactively. 

484. We also reject arguments that 

section 706 itself provides adequate 

protections such that forbearance from 

the pole access provisions of section 224 

and related regulations is warranted. 

While section 706 of the 1996 Act 

would continue to apply even if we 

granted forbearance here, consistent 

with our conclusions in other sections, 

we find that section 224 and our 

implementing regulations provide a 

more certain foundation for evaluating 

providers’ conduct and pursuing 

enforcement if warranted in relevant 

circumstances arising in the future. (We 

also note, for example, that this 

approach obviates the need to determine 

whether or to what extent section 224’s 

pole access provisions are more specific 

than section 706 of the 1996 Act in 

relevant respects, and thus could be 

seen as exclusively governing over the 

provisions of section 706 of the 1996 

Act as to some set of pole access issues. 

The approach we take avoids this 

potential uncertainty, and we thus need 

not and do not address this question.) 


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d. Universal Service Provisions 

(sections 254, 214(e)) 

485. We find the statutory test is met 

to grant certain forbearance under 

section 10(a) from applying sections 

254(d), (g), and (k), as discussed below, 

but we otherwise will apply section 254, 

section 214(e) and our implementing 

rules with respect to broadband Internet 

access service, as recommended by a 

number of commenters. Section 254, the 

statutory foundation of our universal 

service programs, requires the 

Commission to promote universal 

service goals, including ‘‘[a]ccess to 

advanced telecommunications and 

information services . . . in all regions 

of the Nation.’’ Section 214(e) provides 

the framework for determining which 

carriers are eligible to participate in 

universal service programs. Even prior 

to the classification of broadband 

Internet access service adopted here, the 

Commission already supported 

broadband services to schools, libraries, 

and health care providers and supported 

broadband-capable networks in highcost areas. Broadband Internet access 

service was, and is, a key focus of those 

universal service policies, and 

classification today simply provides 

another statutory justification in support 

of these policies going forward. Under 

our broader section 10(a)(3) public 

interest analysis, the historical focus of 

our universal service policies on 

advancing end-users’ access to 

broadband Internet access service 

persuades us to give much less weight 

to arguments that we should proceed 

incrementally in this context. In 

particular, the Commission already has 

provided support for deployment of 

broadband-capable networks and 

imposed associated public interest 

obligations requiring the provision of 

broadband Internet access service. In 

connection with the Lifeline program, 

for instance, the Commission has 

established the goal of ‘‘ensuring the 

availability of broadband service for 

low-income Americans.’’ We therefore 

conclude that these universal service 

policy-making provisions of section 254, 

and the interrelated requirements of 

section 214(e), give us greater flexibility 

in pursuing those policies, and 

outweighs any limited incremental 

effects (if any) on broadband providers 

in this context. (We note that 

commenters opposing the application of 

section 254 as a whole (or those 

provisions of section 254 from which 

we do not forbear below) or arguing that 

such action could be deferred pending 

future proceedings, appear to make only 

generalized, non-specific arguments, 

which we do not find sufficient to 

overcome our analysis above. In 

addition, some commenters contend 

that the Commission should forbear 

from all of Title II based on generalized 

arguments about the marketplace, such 

as past network investment or changes 

in performance or price per megabit in 

the recent past. We are not persuaded 

that those arguments justify a different 

outcome regarding section 254, both for 

the reasons discussed previously, and 

because commenters do not 

meaningfully explain how these 

arguments impact the section 10 

analysis here, given that, even taken at 

face value, arguments based on such 

marketplace considerations do not 

purport to sufficiently address the 

policy concerns underlying section 254 

and our universal service programs. 

Nothing in the record suggests that we 

should tailor our advancement of 

universal service policies to broadband 

providers of a particular size, and we 

thus are not persuaded that a different 

conclusion in our forbearance analysis 

should be reached in the case of small 

broadband providers, for example.) 

Because forbearance would not be in the 

public interest under section 10(a)(3), 

we apply these provisions of section 254 

and 214(e) and our implementing rules 

with respect to broadband Internet 

access service. 

486. We also reject arguments that 

section 706 itself provides adequate 

protections such that forbearance from 

the provisions of sections 254 and 

214(e) discussed above is warranted. 

While section 706 of the 1996 Act 

would continue to apply even if we 

granted forbearance here, we find that 

these provisions provide a more certain 

foundation for implementing our 

universal service policies and enforcing 

our associated rules, consistent with our 

conclusions in other sections. (We also 

note, for example, that this approach 

obviates the need to determine whether 

or to what extent these universal service 

provisions are more specific than 

section 706 of the 1996 Act in relevant 

respects, and thus could be seen as 

exclusively governing over the 

provisions of section 706 of the 1996 

Act as to some set of universal issues. 

The approach we take avoids this 

potential uncertainty, and we thus need 

not and do not address this question.) 

Among other things, while our interest 

in ensuring universal service often may 

have a nexus with the standards of 

sections 706(a) and (b), the record does 

not reveal that the public interest in 

ensuring universal access is limited just 

to the universe of concerns 

encompassed by section 706. 

487. Notwithstanding the foregoing, 

for now we do forbear in part from the 

first sentence of section 254(d) and our 

associated rules insofar as they would 

immediately require new universal 

service contributions associated with 

broadband Internet access service. The 

first sentence of section 254(d) 

authorizes the Commission to impose 

universal service contributions 

requirements on telecommunications 

carriers—and, indeed, goes even further 

to require ‘‘[e]very telecommunications 

carrier that provides interstate 

telecommunications services’’ to 

contribute. (In implementing that 

statutory provision, the Commission 

concluded that federal contributions 

would be based on end-user 

telecommunications revenues.) Under 

that provision and our implementing 

rules, providers are required to make 

federal universal service support 

contributions for interstate 

telecommunications services, which 

now would include broadband Internet 

access service by virtue of the 

classification decision in this order. 

488. Consistent with our analysis of 

TRS contributions above, we note that 

on one hand, newly applying universal 

service contribution requirements on 

broadband Internet access service 

potentially could spread the base of 

contributions to the universal service 

fund, providing at least some benefit to 

customers of other services that 

contribute, and potentially also to the 

stability of the universal service fund 

through the broadening of the 

contribution base. We note, however, 

that the Commission has sought 

comment on a wide range of issues 

regarding how contributions should be 

assessed, including whether to continue 

to assess contributions based on 

revenues or to adopt alternative 

methodologies for determining 

contribution obligations. (Moreover, the 

Commission has referred the question of 

how the Commission should modify the 

universal service contribution 

methodology to the Federal-State Joint 

Board on Universal Service (Joint Board) 

and requested a recommended decision 

by April 7, 2015. We recognize that a 

short extension of that deadline for the 

Joint Board to make its recommendation 

to the Commission may be necessary in 

light of the action we take today. Our 

action in this Order thus will not ‘‘short 

circuit’’ the rulemaking concerning 

contributions issues as some 

commenters fear.) We therefore 

conclude that limited forbearance is 

warranted at the present time in order 

to allow the Commission to consider the 

issues presented based on a full record 

in that docket. (As noted below, we do 

not forbear from the mandatory 


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obligation of carriers that have chosen 

voluntarily to offer broadband as a Title 

II service to contribute to the federal 

universal service fund. Because we do 

nothing today to disturb the status quo 

with respect to current contributions 

obligations for the reasons explained 

above, and there will be a future 

opportunity to consider these issues in 

the contributions docket, we find that 

certain arguments raised in the record 

today are better taken up in that 

proceeding.) 

489. As reiterated in our discussion of 

TRS contributions above, courts have 

recognized when exercising its section 

10 forbearance authority ‘‘[g]uided by 

section 706,’’ the Commission 

permissibly may ‘‘decide[] to balance 

the future benefits’’ of encouraging 

broadband deployment ‘‘against [the] 

short term impact’’ from a grant of 

forbearance. Our decision, guided by 

section 706, to tailor the regulations 

applied to broadband Internet access 

service thus tips the balance in favor of 

the finding that applying new universal 

service fund contribution requirements 

at this time is not necessary to ensure 

just and reasonable rates and practices 

or for the protection of consumers under 

sections 10(a)(1) and (a)(2), and that 

forbearance is in the public interest 

under section 10(a)(3) while the 

Commission completes its pending 

rulemaking regarding contributions 

reform. (While some commenters cite 

regulatory parity as a reason not to 

forbear from universal service 

contribution requirements, they do not 

explain how such concerns are 

implicated insofar as every provider’s 

broadband Internet access service is 

subject to this same forbearance from 

universal service contribution 

requirements. In any event, those 

arguments are better addressed in the 

contributions rulemaking docket based 

on the full record developed therein) 

The competing considerations here 

make this a closer call under our section 

10(a) analysis, however, and thus as in 

the TRS contribution context, we limit 

our action only to forbearing from 

applying the first sentence of section 

254(d) and our implementing rules 

insofar as they would immediately 

require new universal service 

contributions for broadband Internet 

access services sold to end users but not 

insofar as they authorize the 

Commission to require such 

contributions in a rulemaking in the 

future. Thus, while broadband Internet 

access services will not be subject to 

new universal service contributions at 

this time, our action today is not 

intended to prejudge or limit how the 

Commission may proceed in the future. 

(Because our action today precludes for 

the time being federal universal service 

contribution assessments on broadband 

Internet access services that are not 

currently assessed, we conclude that 

any state requirements to contribute to 

state universal service support 

mechanisms that might be imposed on 

such broadband Internet access services 

would be inconsistent with federal 

policy and therefore are preempted by 

section 254(f)—at least until such time 

that the Commission rules on whether 

to require federal universal service 

contributions by providers of broadband 

Internet access service. We note that we 

are not aware of any current state 

contribution obligation for broadband 

Internet access service; our 

understanding is that broadband 

providers that voluntarily offer Internet 

transmission as a Title II service treat 

100 percent of those revenues as 

interstate. We recognize that section 254 

expressly contemplates that states will 

take action to preserve and advance 

universal service, and our actions in this 

regard will benefit from further 

deliberation.) 

490. Nothing in our forbearance with 

respect to the first sentence of section 

254(d) for broadband Internet access 

service is intended to encompass, 

however, situations where incumbent 

local exchange carriers or other common 

carriers voluntarily choose to offer 

Internet transmission services as 

telecommunications services subject to 

the full scope of Title II requirements for 

such services. As a result, such 

providers remain subject to the 

mandatory contribution obligations that 

arise under section 254(d) and the 

Commission’s rules by virtue of their 

elective provision of such services until 

such time as the Commission further 

addresses contributions reform in the 

pending proceeding. 

491. We also forbear from applying 

sections 254(g) and (k) and our 

associated rules. Section 254(g) requires 

‘‘that the rates charged by providers of 

interexchange telecommunications 

services to subscribers in rural and high 

cost areas shall be no higher than the 

rates charged by each such provider to 

its subscribers in urban areas.’’ Section 

254(k) prohibits the use of revenues 

from a non-competitive service to 

subsidize a service that is subject to 

competition. Commenters’ arguments to 

apply provisions of section 254 appear 

focused on the provisions dealt with 

above—i.e., provisions providing for 

support of broadband networks or 

services or addressing universal service 

contributions—and do not appear to 

focus at all on why we should not 

forbear from applying the requirements 

of sections 254(g) and (k) and our 

implementing rules. In particular, 

consistent with the more detailed 

discussion in our analysis below, we are 

not persuaded that applying these 

provisions is necessary for purposes of 

sections 10(a)(1) and (a)(2), particularly 

given the availability of the core 

broadband Internet access service 

requirements. Likewise, under the 

tailored regulatory approach we find 

warranted here, informed by our 

responsibilities under section 706, we 

conclude that forbearance from 

enforcing sections 254(g) and (k) is in 

the public interest under section 

10(a)(3). We thus forbear from applying 

these provisions insofar as they would 

be newly triggered by the classification 

of broadband Internet access service in 

this Order. Nothing in our forbearance 

with respect to section 254(k) for 

broadband Internet access service is 

intended to encompass, however, 

situations where incumbent local 

exchange carriers or other common 

carriers voluntarily choose to offer 

Internet transmission services as 

telecommunications services subject to 

the full scope of Title II requirements 

such services. As a result, such 

providers remain subject to the 

obligations that arise under section 

254(k) and the Commission’s rules by 

virtue of their elective provision of such 

services. (For example, if a rate-of-return 

incumbent LEC (or other provider) 

voluntarily offers Internet transmission 

outside the forbearance framework 

adopted in this Order, it remains subject 

to the pre-existing Title II rights and 

obligations, including those from which 

we forbear in this Order.) 

2. Broad Forbearance From 27 Title II 

Provisions for Broadband Internet 

Access Service 

492. Beyond those core broadband 

Internet access service requirements we 

grant extensive forbearance as permitted 

by our authority under section 10 of the 

Act based on our predictive judgment 

regarding the adequacy of other 

protections where needed, coupled with 

the role of section 706 of the 1996 Act 

and our desire to tailor the requirements 

that should apply here, likewise 

persuade us that this forbearance is in 

the public interest. The analyses and 

forbearance decisions regarding 

broadband Internet access service reflect 

the broad support in the record for 

expansive forbearance. With respect to 

proposals to retain particular statutory 

provisions or requirements, we are not 

persuaded by the record here that 

forbearance is not justified for the 

reasons discussed below. 


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493. As a threshold matter, we reject 

arguments from certain commenters that 

include bare assertions that we should 

not forbear as to particular provisions or 

regulations without any meaningful 

supporting analysis or discussion under 

the section 10(a) framework. To the 

extent that these commenters argue for 

a narrower result than the forbearance 

we grant here, such conclusory 

arguments do not undercut our finding 

that the section 10(a) criteria are met as 

to the forbearance granted here with 

respect to broadband Internet access 

service. For similar reasons we reject 

arguments that the Commission should 

‘‘exempt from forbearance . . . Section 

228 . . . provid[ing] customers with 

protections from abusive practices by 

pay-per-call service providers’’ insofar 

as they do not explain how such a 

provision meaningfully would apply in 

the context of broadband Internet access 

service or why the section 10(a) criteria 

are not met in that context. As a result, 

these arguments do not call into 

question our section 10(a) findings 

below in the context of the broadband 

Internet access service. With respect to 

proposals to retain other statutory 

provisions, we conclude that 

commenters fail to demonstrate at this 

time that other, applicable requirements 

or protections are inadequate, for the 

reasons discussed below. 

494. For each of the remaining 

statutory and regulatory obligations 

triggered by our classification decision, 

the realities of the near-term past under 

the prior ‘‘information service’’ 

classification inform our section 10(a) 

analysis. Although that practical 

baseline is not itself dispositive of the 

appropriate regulatory treatment of 

broadband Internet access service, the 

record reveals numerous concerns about 

the burdens—or, at a minimum, 

regulatory uncertainty—that would be 

fostered by a sudden, substantial 

expansion of the actual or potential 

regulatory requirements and obligations 

relative to the status quo from the nearterm past. (We are not persuaded by 

arguments that a tailored regulatory 

approach like that adopted here 

inherently would be inferior to the 

adoption of a more regulatory approach 

in this Order. Rather, we base our 

decision to adopt such a tailored 

approach based both on our own 

analysis of the overall record regarding 

investment incentives (which can 

involve multifaceted considerations), 

and the wisdom we see in exercising 

our discretion to proceed incrementally, 

as discussed in greater detail below.) It 

is within the agency’s discretion to 

proceed incrementally, and we find that 

adopting an incremental approach 

here—by virtue of the forbearance 

granted here—guards against any 

unanticipated and undesired 

detrimental effects on broadband 

deployment that could arise. We note in 

this regard that when exercising its 

section 10 forbearance authority 

‘‘[g]uided by section 706,’’ the 

Commission permissibly may ‘‘decide[ ] 

to balance the future benefits’’ of 

encouraging broadband deployment 

‘‘against [the] short term impact’’ from 

a grant of forbearance. Under the section 

10(a) analysis, we are particularly 

persuaded to give greater weight at this 

time to the likely benefits of proceeding 

incrementally given the speculative or 

otherwise limited nature of the 

arguments in the current record 

regarding the possible near-term harms 

from forbearance of the scope adopted 

here. 

495. We further conclude that our 

analytical approach as to all the 

provisions and regulations from which 

we forbear in this Order is consistent 

with section 10(a). Under section 

10(a)(1), we consider here whether 

particular provisions and regulations are 

‘‘necessary’’ to ensure ‘‘just and 

reasonable’’ conduct by broadband 

Internet access service providers. 

Interpreting those ambiguous terms, we 

conclude that we reasonably can 

account for policy trade-offs that can 

arise under particular regulatory 

approaches. (While the specific 

balancing at issue in EarthLink v. FCC, 

462 F.3d at 8–9, may have involved 

trade-offs regarding competition, we 

nonetheless believe the view expressed 

in that decision accords with our 

conclusion here that we permissibly can 

interpret and apply all the section 10(a) 

criteria to also reflect the competing 

policy concerns here. As the D.C. 

Circuit also has observed, within the 

statutory framework that Congress 

established, the Commission ‘‘possesses 

significant, albeit not unfettered, 

authority and discretion to settle on the 

best regulatory or deregulatory approach 

to broadband.’’) For one, we find it 

reasonable in the broadband Internet 

access service context for our 

interpretation and application of section 

10(a)(1) to be informed by section 706 

of the 1996 Act. (Given the 

characteristics specific to broadband 

Internet access service that we find on 

the record here—including, among other 

things, protections from the newlyadopted open Internet rules and the 

overlay of section 706—we limit our 

forbearance from the relevant provisions 

and regulations to the context of 

broadband Internet access service. 

Outside that context, they will continue 

to apply as they have previously, 

unaffected by this Order. We thus reject 

claims that the actions or analysis here 

effectively treat forborne-from 

provisions or regulations as surplusage 

or that we are somehow ignoring 

significant portions of the Act.) As 

discussed above, section 706 of the 1996 

Act ‘‘explicitly directs the FCC to 

‘utiliz[e]’ forbearance to ‘encourage the 

deployment on a reasonable and timely 

basis of advanced telecommunications 

capability to all Americans,’ ’’ and our 

recent negative section 706(b) 

determination triggers a duty under 

section 706 for the Commission to ‘‘take 

immediate action to accelerate 

deployment.’’ As discussed in greater 

detail below, a tailored regulatory 

approach avoids disincentives for 

broadband deployment, which we 

weigh in considering what outcomes are 

just and reasonable—and whether the 

forborne-from provisions are necessary 

to ensure just and reasonable conduct— 

under our section 10(a)(1) analyses in 

this item. Furthermore, our forbearance 

in this Order, informed by recent 

experience and the record in this 

proceeding, reflects the recognition that, 

beyond the specific bright-line rules 

adopted above, particular conduct by a 

broadband Internet access service 

provider can have mixed consequences, 

rendering case-by-case evaluation 

superior to bright-line rules. 

Consequently, based on those 

considerations, it is our predictive 

judgment that, outside the bright line 

rules applied under this Order, just and 

reasonable conduct by broadband 

providers is better ensured under 

section 10(a)(1) by the case-by-case 

regulatory approach we adopt—which 

enables us to account for the 

countervailing policy implications of 

given conduct—rather than any of the 

more bright-line requirements that 

would have flowed from the provisions 

and regulations from which we forbear. 

(As explained above, we conclude that 

while competition can be a sufficient 

basis to grant forbearance, it is not 

inherently necessary in order to find 

section 10 satisfied. Given our 

assessment of the advantages of the 

regulatory framework applied under this 

Order, we also reject suggestions that, 

where the Commission does not rely on 

sufficient competition to justify 

forbearance, alternative ex ante 

regulations would always be necessary 

to ensure just and reasonable conduct 

and otherwise provide a basis for 

finding the section 10(a) criteria to be 

met. Further, while the Final Regulatory 

Flexibility Analysis estimates a large 


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Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Rules and Regulations 19823 

possible universe of broadband Internet 

access service providers, we do not find 

a basis to conclude that they all—or a 

sufficiently significant number of 

them—are likely to be simultaneously 

subject to complaints to render the caseby-case approach unworkable or inferior 

to additional bright line rules, and thus 

reject concerns to the contrary.) These 

same considerations underlie our 

section 10(a)(2) analyses, as well, since 

advancing broadband deployment and 

ensuring appropriately nuanced 

evaluations of the consequences of 

broadband provider conduct better 

protects consumers. Likewise, these 

same policy considerations are central 

to the conclusion that the forbearance 

granted in this Order, against the 

backdrop of the protections that remain, 

best advance the public interest under 

section 10(a)(3). 

a. Tariffing (Sections 203, 204) 

496. We find the section 10(a) criteria 

met and forbear from applying section 

203 of the Act insofar as it newly 

applies to providers by virtue of our 

classification of broadband Internet 

access service. That provision requires 

common carriers to file a schedule of 

rates and charges for interstate common 

carrier services. As a threshold matter, 

we find broad support in the record for 

expansive forbearance, as discussed 

above. Moreover, as advocated by some 

commenters, it is our predictive 

judgment that other protections that 

remain in place are adequate to guard 

against unjust and unreasonable and 

unjustly and unreasonably 

discriminatory rates and practices in 

accordance with section 10(a)(1) and to 

protect consumers under section 

10(a)(2). We likewise conclude that 

those other protections reflect the 

appropriate calibration of regulation of 

broadband Internet access service at this 

time, such that forbearance is in the 

public interest under section 10(a)(3). 

497. As discussed below, sections 201 

and 202 of the Act and our open 

Internet rules are designed to preserve 

and protect Internet openness, 

prohibiting unjust and unreasonable 

and unjustly or unreasonably 

discriminatory conduct by providers of 

broadband Internet access service for or 

in connection with broadband Internet 

access service and protecting the retail 

mass market customers of broadband 

Internet access service. In particular, 

under our open Internet rules and the 

application of sections 201 and 202, we 

establish both ex ante legal 

requirements and a framework for caseby-case evaluations governing 

broadband providers’ actions. In 

calibrating the legal framework in that 

manner, we consider, among other 

things, the operation of the marketplace 

in conjunction with open Internet 

protections. It is our predictive 

judgment that these protections will be 

adequate to protect the interests of 

consumers—including the interest in 

just, reasonable, and nondiscriminatory 

conduct—that might otherwise be 

threatened by the actions of broadband 

providers. Importantly, broadband 

providers also are subject to complaints 

and Commission enforcement in the 

event that they violate sections 201 or 

202 of the Act, the open Internet rules, 

or other elements of the core broadband 

Internet access requirements. We thus 

find on the record here that section 

203’s requirements are not necessary to 

ensure just and reasonable and not 

unjustly or unreasonably discriminatory 

rates and practices under section 

10(a)(1) nor for the protection of 

consumers under 10(a)(2). 

498. The predictive judgment 

underlying our section 10 analysis is 

informed by recent experience. 

Historically, tariffing requirements were 

not applied to broadband Internet access 

service under our prior ‘‘information 

service’’ classification. This provides us 

a practical reference point as part of our 

overall evaluation of the types of 

concerns that are likely to arise in this 

context, underlying our predictive 

judgment regarding the sufficiency of 

the rules and requirements that remain. 

Consequently, providers will not be 

subject to ex ante rate regulation nor 

any requirement of advanced 

Commission approval of rates and 

practices as otherwise would have been 

imposed under section 203. 

499. We also find that the forbearance 

for broadband Internet access service 

satisfies sections 10(a)(1) and (a)(2) and 

is consistent with the public interest 

under section 10(a)(3) in light of the 

objectives of section 706. In addition to 

our specific conclusions above, we find 

more broadly that forbearing from 

section 203 is consistent with the 

overall approach that we conclude 

strikes the right regulatory balance for 

broadband Internet access service at this 

time. In particular, given the overlay of 

section 706 of the 1996 Act, we 

conclude that the better approach at this 

time is to focus on applying the core 

broadband Internet access service 

requirements rather than seeking to 

apply the additional provisions and 

regulations triggered by the 

classification of broadband Internet 

access service from which we forbear. 

As explained above, section 706 of the 

1996 Act ‘‘explicitly directs the FCC to 

‘utiliz[e]’ forbearance to ‘encourage the 

deployment on a reasonable and timely 

basis of advanced telecommunications 

capability to all Americans.’ ’’ The D.C. 

Circuit has further held that the 

Commission ‘‘possesses significant, 

albeit not unfettered, authority and 

discretion to settle on the best 

regulatory or deregulatory approach to 

broadband.’’ We find that the scope of 

forbearance adopted in this order strikes 

the right balance at this time between, 

on the one hand, providing the 

regulatory protections clearly required 

by the evidence and our analysis to, 

among other things, guard the virtuous 

cycle of Internet innovation and 

investment and, on the other hand, 

avoiding additional regulations that do 

not appear required at this time and that 

risk needlessly detracting from 

providers’ broadband investments. 

500. Additionally, section 10(b) 

requires the Commission, as part of its 

public interest analysis, to analyze the 

impact forbearance would have on 

competitive market conditions. 

Although there is some evidence of 

competition for broadband Internet 

access service, it appears to be limited 

in key respects, and the record also does 

not provide a strong basis for 

concluding that the forbearance granted 

in this Order is likely to directly impact 

the competitiveness of the marketplace 

for broadband Internet access services. 

We note that the forbearance we grant 

is part of an overall regulatory approach 

designed to promote infrastructure 

investment in significant part by 

preserving and promoting innovation 

and competition at the edge of the 

network. Thus, even if the grant of 

forbearance does not directly promote 

competitive market conditions, it does 

so indirectly by enabling us to strike the 

right balance at this time in our overall 

regulatory approach. Our regulatory 

approach, viewed broadly, thus does 

advance competition in important ways. 

Ultimately, however, while we consider 

the section 10(b) criteria in our section 

10(a)(3) public interest analysis, our 

public interest determination rests on 

other grounds. In particular, under the 

entirety of our section 10(a)(3) analysis, 

as discussed above, we conclude that 

the public interest supports the 

forbearance adopted in this Order. 

(These same section 10(b) findings 

likewise apply in the case of our other 

section 10(a)(3) public interest 

evaluations with respect to broadband 

Internet access service, and should be 

understood as incorporated there.) 

501. We thus are not persuaded by 

other commenters arguing that the 

Commission’s ability to forbear from 

section 203 depends on findings of 

sufficient competition. As explained 

above, persuasive evidence of 


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competition is not the sole possible 

grounds for granting forbearance. As 

also explained above, we conclude at 

this time that the Open Internet rules 

and other elements of the core 

broadband Internet access service 

requirements meet our identified needs 

in this specific context. The 

Commission also has recognized 

previously that tariffing imposes 

administrative costs. We also consider 

our objective of striking the right 

balance of a regulatory and deregulatory 

approach, consistent with section 706 of 

the 1996 Act. (Indeed, even when 

forbearing from section 203 in the 

CMRS context, the Commission not only 

relied in part on the presence of 

competition, but also that continued 

application of sections 201, 202, and 

208 ‘‘provide[s] an important protection 

in the event there is a market failure,’’ 

and ‘‘tariffing imposes administrative 

costs and can themselves be a barrier to 

competition in some circumstances.’’ 

Those are in accord with key elements 

of our conclusions here.) Collectively, 

these persuade us not to depart from the 

section 10(a) analysis above, 

irrespective of the state of competition. 

502. Nor are we persuaded by 

commenters’ specific arguments that 

tariffs filed under section 203 provide 

‘‘the necessary information to 

distinguish between providers’’ and 

thus should not be subject to 

forbearance for broadband Internet 

access service. As certain of these 

commenters themselves note, such 

objectives might be met in other ways. 

To the extent that disclosures regarding 

relevant broadband provider practices 

are needed, our Open Internet 

transparency rule is designed to serve 

those ends. Commenters do not 

meaningfully explain why the 

transparency rule is inadequate, and 

thus their arguments do not persuade us 

to depart from our section 10(a) findings 

above in the case of section 203. 

503. We likewise reject the proposals 

of other commenters that we structure 

our forbearance from section 203 to 

permissively, rather than mandatorily, 

detariff broadband Internet access 

service. As a threshold matter, we note 

that, as discussed above, our 

forbearance with respect to broadband 

Internet access services does not 

encompass incumbent local exchange 

carriers or other common carriers that 

offer Internet transmission services as 

telecommunications services subject to 

the full range of Title II requirements 

under the pre-existing legal framework, 

which does provide for permissive 

detariffing. Under the framework 

adopted in this Order, however, we are 

not persuaded that our open Internet 

rules provide for readily administrable 

evaluation of the justness and 

reasonableness of tariff filings. Nor does 

the record reveal that we can rely on 

competitive constraints to help ensure 

the justness and reasonableness of tariff 

filings. Furthermore, as the Commission 

previously has recognized, permitting 

voluntary tariff filings can raise a 

number of public interest concerns, and 

consistent with those findings, we 

mandatorily detariff broadband Internet 

access service for purposes of the 

regulatory framework adopted in this 

Order. 

504. Some commenters also advocate 

that the Commission retain section 204. 

Section 204 provides for Commission 

investigation of a carrier’s rates and 

practices newly filed with the 

Commission, and to order refunds, if 

warranted. For the reasons described 

above, however, we forbear from 

sections 203’s tariffing requirements for 

broadband Internet access service, and 

adopt mandatory detariffing. Given that 

decision, commenters do not indicate 

what purpose section 204 still would 

serve, and we thus do not depart in this 

context from our overarching section 

10(a) forbearance analysis above. 

b. Enforcement-Related Provisions 

(Sections 205, 212) 

505. We find forbearance from 

applying certain enforcement-related 

provisions of Title II beyond the core 

Title II enforcement authority discussed 

above warranted under section 10(a), 

and we reject arguments to the contrary. 

Section 205 provides for Commission 

investigation of existing rates and 

practices and to prescribe rates and 

practices if it determines that the 

carrier’s rates or practices do not 

comply with the Communications Act. 

The Commission previously has 

forborne from enforcing section 205 

where it sought to adopt a tailored, 

limited regulatory environment and 

where, notwithstanding that 

forbearance, given the continued 

application of sections 201 and 202 and 

other complaint processes. For similar 

reasons here, we find at this time that 

the core Title II enforcement authority, 

along with the ability to pursue claims 

in court, as discussed below, provide 

adequate enforcement options and the 

statutory forbearance test is met for 

section 205. Consistent with our 

analysis above, it thus is our predictive 

judgment that these provisions are not 

necessary to ensure just, reasonable and 

nondiscriminatory conduct by providers 

of broadband Internet access service or 

to protect consumers under sections 

10(a)(1) and (a)(2). In addition, as above, 

under the tailored regulatory approach 

we find warranted here, informed by 

our responsibilities under section 706, 

we conclude that forbearance is in the 

public interest under section 10(a)(3). 

We thus reject claims that forbearance 

from section 205, insofar as it is 

triggered by our classification of 

broadband Internet access service, is not 

warranted. (Although Public Knowledge 

et al. cite marketplace differences 

between CMRS and broadband Internet 

access service, they do not explain why 

those differences necessitate a narrower 

forbearance decision in this context— 

particularly since we do not rely on the 

state of competition as a rationale for 

our forbearance decision—whether as to 

section 205, or as to the other provisions 

discussed there (sections 204, 211, 

212).) 

506. We also forbear from applying 

section 212 to the extent that it newly 

applies by virtue of our classification of 

broadband Internet access service. 

Section 212 empowers the Commission 

to monitor interlocking directorates, i.e., 

the involvement of directors or officers 

holding such positions in more than one 

common carrier. In the CMRS context, 

the Commission granted forbearance 

from section 212 on the grounds that 

forbearance would reduce regulatory 

burdens without adversely affecting 

rates in the CMRS market. The 

Commission noted that section 212 was 

originally placed in the 

Communications Act to prevent 

interlocking officers from engaging in 

anticompetitive practices, such as price 

fixing. The Commission found, 

however, that protections of section 

201(b), 221, (The Commission noted 

that section 221 provided protections 

against interlocking directorates, but 

section 221(a) was repealed in the 

Telecommunications Act of 1996. This 

section gave the Commission the power 

to review proposed consolidations and 

mergers of telephone companies. While 

section 221(a) allowed the Commission 

to bolster its analysis to forbear from 

section 212 in the Wireless Forbearance 

Order, the protections against 

interlocking directorates provided by 

section 201(b) and 15 U.S.C. 19 provide 

sufficient protection to forbear from 

section 212 for broadband Internet 

access services.) and antitrust laws were 

sufficient to protect consumers against 

the potential harms from interlocking 

directorates. Forbearance also reduced 

an unnecessary regulatory cost imposed 

on carriers. The Commission later 

extended this forbearance to dominant 

carriers and carriers not yet found to be 

non-dominant, repealing part 62 of its 

rules and granting forbearance from the 

provisions of section 212. Commenters 


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have not explained why we should not 

find the protections of section 201(b) 

and antitrust law adequate here, as well. 

It likewise is our predictive judgment 

that other protections will adequately 

ensure just, reasonable, and 

nondiscriminatory conduct by providers 

of broadband Internet access service and 

protect consumers here, and thus 

conclude that the application of section 

212 is not necessary for purposes of 

sections 10(a)(1) or (a)(2). Moreover, as 

above, under the tailored regulatory 

approach we find warranted here, 

informed by our responsibilities under 

section 706, we conclude that 

forbearance is in the public interest 

under section 10(a)(3). 

c. Information Collection and Reporting 

Provisions (Sections 211, 213, 215, 218 

Through 220) 

507. In addition, although some 

commenters advocate that the 

Commission retain provisions of the Act 

that provide ‘‘discretionary powers to 

compel production of useful 

information or the filing of regular 

reports,’’ we find the section 10(a) 

factors met and grant forbearance. 

However, the cited provisions 

principally are used by the Commission 

to implement its traditional rate-making 

authority over common carriers. Here, 

we do not apply tariffing requirements 

or ex ante rate regulation of broadband 

Internet access service of the sort for 

which these requirements would be 

needed. Indeed, we cannot and do not 

envision adopting such requirements in 

the future. Thus, we do not find it 

necessary or in the public interest to 

apply these provisions simply in 

anticipation of such an exceedingly 

unlikely scenario. Moreover, as 

particularly relevant here, section 706 of 

the 1996 Act, along with other statutory 

provisions, give the Commission 

authority to collect necessary 

information. We recognize that the 

Commission generally did not forbear 

from these requirements in the CMRS 

context, noting the minimal regulatory 

burdens they imposed on such 

providers, and observing that 

reservation of this Commission 

authority would allow further 

consideration of possible information 

collection requirements, given that ‘‘the 

cellular market is not yet fully 

competitive.’’ As explained above, in 

this context, however, we find 

forbearance to be the more prudent 

course, and therefore in the public 

interest under section 10(a)(3), given 

both our intention of tailoring the 

regulations applicable to broadband 

Internet access service given our 

responsibility under section 706 to 

encourage deployment. Because we also 

do not find the information collection 

and reporting provisions raised by 

commenters to be necessary at this time 

within the meaning of sections 10(a)(1) 

and (a)(2), we forbear from applying 

these provisions insofar as they 

otherwise newly would apply by virtue 

of our classification of broadband 

Internet access service. 

d. Discontinuance, Transfer of Control, 

and Network Reliability Approval 

(Section 214) 

(Unless otherwise indicated, for 

convenience, this item uses 

‘‘discontinuance,’’ to also include 

reduction or impairment of service 

under section 214.) 

508. We also find section 10(a) met for 

purposes of forbearing from applying 

section 214 discontinuance approval 

requirements. We reject the arguments 

of some commenters that we should not 

forbear, which focus in particular on 

concerns about discontinuances in rural 

areas or areas with only one provider. 

As a threshold matter, our universal 

service rules are designed to advance 

the deployment of broadband networks, 

including in rural and high-cost areas. 

Notably, this includes certain public 

interest obligations on the part of highcost universal service support recipients 

to offer broadband Internet access 

service. Consequently, these provide 

important protections, especially in 

rural areas or areas that might only have 

one provider. Further, the conduct 

standards in our open Internet rules 

provide important protections against 

reduction or impairment of broadband 

Internet access service short of the 

complete cessation of providing that 

service. Thus, while we agree with 

commenters regarding the importance of 

broadband Internet access service, 

including in rural areas or areas served 

by only one provider, the generalized 

arguments of those commenters do not 

explain why the protections described 

above, in conjunction with the core 

broadband Internet access service 

requirements more broadly, are not 

likely to be sufficient to guard against 

unjust or unreasonable conduct by 

providers of broadband Internet access 

service or to protect consumers. 

509. Moreover, the Commission has 

recognized in the past that section 214 

discontinuance requirements impose 

some costs, although the significance of 

those costs is greater where (unlike 

here) the marketplace for the relevant 

service is competitive. Further, as 

discussed above, we find the most 

prudent regulatory approach at this time 

is to proceed incrementally when 

adding regulations beyond what had 

been the prior status quo. (The overlay 

of section 706 of the 1996 Act here, 

including how it informs our decision to 

proceed incrementally, distinguishes 

this from the Commission’s prior 

evaluation of relief from Title II for 

CMRS. Consequently, although we look 

to the precedent from the CMRS 

context—as we do other forbearance 

precedent—to the extent that it is 

instructive, the mere fact that we 

declined to forbear from applying a 

provision in the CMRS context does not 

demonstrate that we should continue to 

apply it here as some suggest.) Given 

those considerations, and against the 

backdrop of other protections here, as 

discussed above, commenters have not 

persuaded us that applying section 214 

discontinuance requirements with 

respect to broadband Internet access 

service is necessary within the meaning 

of sections 10(a)(1) and (a)(2) or that 

forbearance would not be in the public 

interest under section 10(a)(3). We thus 

forbear from applying section 214 

discontinuance requirements to the 

extent that they would be triggered by 

our classification of broadband Internet 

access service here. 

510. We also reject arguments against 

forbearance from applying section 214 

to enable the Commission to engage in 

merger review. As these commenters 

recognize, prior to this Order the 

Commission already has commonly 

reviewed acquisitions of or mergers 

among entities that provide broadband 

services. (For example, the Commission 

reviews all applications for transfer or 

assignment of a wireless license, 

including licenses used to provide 

broadband services, pursuant to section 

310(d) of the Act to determine whether 

the applicants have demonstrated that 

the proposed transfer or assignment will 

serve the public interest, convenience, 

and necessity. As this review is not 

triggered by reclassification, nothing in 

this Order limits or otherwise affects our 

review under section 310.) Although 

these comments speculate about a future 

time when communications services 

have evolved in such a way that the 

Commission would lack some other 

basis for its review, the record here does 

not demonstrate that it is sufficiently 

imminent to warrant deviating from our 

section 10 analysis regarding section 

214 above. Notably, today we apply the 

core broadband Internet access service 

requirements that provide important 

constraints on broadband providers’ 

conduct and protections for consumers. 

Thus, similar to our analysis above, it is 

our predictive judgment that other 

protections will be sufficient to ensure 

just, reasonable, and nondiscriminatory 


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conduct by providers of broadband 

Internet access service and to protect 

consumers for purposes of sections 

10(a)(1) and (a)(2). Given our objective 

to proceed in a tailored manner, we 

likewise find it in the public interest to 

forbear from applying section 214 with 

respect to broadband Internet access 

service insofar as that provision would 

require Commission approval of 

transfers of control involving that 

service. 

511. We also grant forbearance with 

respect to section 214(d), under which 

the Commission may require a common 

carrier ‘‘to provide itself with adequate 

facilities for the expeditious and 

efficient performance of its service.’’ 

The duty to maintain ‘‘adequate 

facilities’’ includes ‘‘undertak[ing] 

improvements in facilities and 

expansion of services to meet public 

demand.’’ In practice, we expect that the 

exercise of this duty here would overlap 

significantly with the sorts of behaviors 

we would expect providers to have 

marketplace incentives to engage in 

voluntarily as part of the ‘‘virtuous 

cycle.’’ (Thus, even if our open Internet 

rules do not directly address this issue, 

by helping promote the virtuous cycle 

more generally, they also will help 

ensure that broadband providers have 

marketplace incentives to behave in this 

manner.) Beyond that, comments 

contending that the Commission should 

not forbear as to that provision do not 

explain why the core broadband 

Internet access service requirements do 

not provide adequate protection at this 

time. Thus, as under our analysis above, 

it is our predictive judgment that other 

protections will be sufficient to ensure 

just, reasonable, and nondiscriminatory 

conduct by providers of broadband 

Internet access service and to protect 

consumers for purposes of sections 

10(a)(1) and (a)(2). Likewise, informed 

by section 706 we have an objective of 

tailoring the regulatory approach here, 

and thus find forbearance warranted 

under section 10(a)(3) insofar as section 

214(d) would apply by virtue of our 

classification of broadband Internet 

access service. 

e. Interconnection and Market-Opening 

Provisions (Sections 251, 252, 256) 

512. At this time, we conclude that 

the availability of other protections 

adequately address commenters’ 

concerns about forbearance from the 

interconnection (Although commenters 

appear to use the term 

‘‘interconnection’’ to mean a potentially 

wide range of different things, for 

purposes of this section we use that 

term solely in the manner it is used and 

defined for purpose of these provisions.) 

provisions under the section 251/252 

framework (As discussed above, 

however, we do not forbear from 

applying section 251(a)(2) with respect 

to broadband Internet access service, 

and that provision thus is outside the 

scope of the discussion here.) and under 

section 256. (As a result of the 

forbearance granted from section 251 

below, section 252 thus is inapplicable, 

insofar it is simply a tool for 

implementing the section 251 

obligations. Although we do not forbear 

from applying section 251(a)(2) with 

respect to broadband Internet access 

service, we note that the Commission 

previously has held that the procedures 

of section 252 are not applicable in 

matters simply involving section 251(a). 

To the extent that the Commission 

nonetheless could be seen as newly 

applying section 252 with respect to 

broadband Internet access service as a 

result of our classification decision here, 

we find the section 10 criteria met to 

grant forbearance from that provision for 

the same reasons discussed with respect 

to section 251 in the text above.) We 

thus forbear from applying those 

provisions to the extent that they are 

triggered by the classification of 

broadband Internet access service in this 

Order. The Commission retains 

authority under sections 201, 202 and 

the open Internet rules to address 

interconnection issues should they 

arise, including through evaluating 

whether broadband providers’ conduct 

is just and reasonable on a case-by-case 

basis. We therefore conclude that these 

remaining legal protections that apply 

with respect to providers of broadband 

Internet access service will enable us to 

act if needed to ensure that a broadband 

provider does not unreasonably refuse 

to provide service or interconnect. (Our 

finding of significant overlap between 

the authority retained by the 

Commission under section 201 and the 

interconnection requirements of section 

251 is reinforced by Congress’ inclusion 

of section 251(g) and (i), which, 

notwithstanding the requirements of 

section 251, preserve the Commission’s 

pre-1996 Act interconnection 

requirements as well as its ongoing 

authority under section 201.) Further, 

we find that applying the legal structure 

adopted in this Order better enables us 

to achieve a tailored framework than 

requiring compliance with 

interconnection under section 251, in 

that the application of that framework 

leaves more to the Commission’s 

discretion, rather than being subject to 

mandatory regulation under section 251. 

Because we retain our authority to apply 

and enforce these other protections, we 

reject commenters’ suggestion that the 

section 10(a) forbearance criteria are not 

met as to sections 251 and 256. (This is 

particularly true as to section 256, 

which does not provide the Commission 

any additional authority that it does not 

otherwise have.) Rather, consistent with 

our analysis for other provisions, we 

find that other protections render 

application of these provisions 

unnecessary for purposes of sections 

10(a)(1) and (a)(2) and the forbearance 

reflects our tailored regulatory 

approach, informed by section 706, and 

thus is in the public interest under 

section 10(a)(3). 

513. We also reject arguments 

suggesting that we should not forbear 

from applying sections 251(b) and (c) 

with respect to broadband Internet 

access service. For example, sections 

251(b)(1), (4), and (5) impose obligations 

on LECs regarding resale, access to 

rights-of-way, and reciprocal 

compensation. Section 251(c) subjects 

incumbent LECs to unbundling, resale, 

collocation, and other competition 

policy obligations. (We reject claims 

that section 251(c) has not been fully 

implemented ‘‘[b]ecause the 

Commission has never applied section 

251(c) to the provision of broadband 

Internet access service’’ as at odds with 

that precedent. The Commission has 

adopted rules implementing section 

251(c), and the fact that the manner in 

which those rules apply might vary with 

the classification of a particular service 

(or changes in that classification) does 

not alter that fact. Therefore, the 

prohibition in section 10(d) of the Act 

against forbearing from section 251(c) 

prior to such a determination is not 

applicable.) While we recognize the 

important competition policy goals that 

spurred Congress’ adoption of these 

requirements in the 1996 Act, we are 

persuaded to forbear from applying 

these provisions under the 

circumstances here. In particular, we 

find the interests of customers of 

customers of broadband Internet access 

service, under section 10(a)(1) and 

(a)(2), and the public interest more 

generally, under section 10(a)(3) is best 

served by an overall regulatory 

framework that includes forbearance 

from these provisions, which balances 

the need for appropriate Commission 

oversight with the goal of tailoring its 

regulatory requirements. The 

Commission previously has sought to 

balance the advancement of competition 

policy with the duty to encourage 

advanced services deployment pursuant 

to section 706. Moreover, to the extent 

that entities otherwise are LECs or 

incumbent LECs, the forbearance 


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granted in this decision does not 

eliminate any previously-applicable 

requirements of sections 251(b) and (c) 

and our implementing rules. In 

addition, the Commission retains 

authority to address unjust or 

unreasonable conduct through its 

section 201 and 202 authority. Thus, we 

do not find the competition policy 

requirements of sections 251 and 259 

and the implementing rules necessary 

within the meaning of section 10(a)(1) 

or (2), and conclude that forbearance 

would be in the public interest under 

section 10(a)(3). As a result, we forbear 

from those requirements in the context 

of broadband Internet access service to 

the extent that those provisions newly 

apply by virtue of our classification of 

that service here. 

f. Subscriber Changes (Section 258) 

514. We also are persuaded, under the 

section 10(a) framework, to forbear from 

applying section 258’s prohibition on 

unauthorized carrier changes, and we 

reject suggestions to the contrary by 

some commenters. In the voice service 

context, that provision, and the 

Commission’s implementing rules, 

provide important protections given the 

ability of a new provider to effectuate a 

carrier change not only without the 

consent of the customer but also 

without direct involvement of the 

customer’s existing carrier. While 

unauthorized carrier change problems 

theoretically might arise even outside 

such a context, the record here does not 

reveal whether or how, in practice, 

unauthorized changes in broadband 

Internet access service providers could 

occur. As a result, on this record we are 

not persuaded what objective would be 

served by application of this provision 

at all, particularly given the protections 

provided by the core broadband Internet 

access service requirements. As under 

our analysis of other provisions, we 

conclude that application of section 258 

is not necessary for purposes of sections 

10(a)(1) and (a)(2) and that forbearance 

is in the public interest. Therefore, 

insofar as our classification of 

broadband Internet access service would 

newly give rise to the application of 

section 258, we forbear from applying 

section 258 to that service. 

g. Other Title II Provisions 

515. Beyond the provisions already 

addressed above, we also forbear from 

applying those additional Title II 

provisions that could give rise to new 

requirements by virtue of our 

classification of broadband Internet 

access service to the extent of our 

section 10 authority. We find it notable 

that no commenters raised significant 

concerns about forbearing from these 

requirements, which reinforces our 

analysis below. 

516. For one, we conclude the threeparty statutory test under section 10(a) 

is met to forbear from applying certain 

provisions concerning BOCs in sections 

271 through 276 of the Act to the extent 

that they would impose new 

requirements arising from the 

classification of broadband Internet 

access service in this Order. Sections 

271, 272, 274, and 275 establish 

requirements and safeguards regarding 

the provision of interLATA services, 

electronic publishing, and alarm 

monitoring services by the Bell 

Operating Companies (BOCs) and their 

affiliates. Section 273 addresses the 

manufacturing, provision, and 

procurement of telecommunications 

equipment and customer premises 

equipment (CPE) by the BOCs and their 

affiliates, the establishment and 

implementation of technical standards 

for telecommunications equipment and 

CPE, and joint network planning and 

design, among other matters. Section 

276 addresses the provision of 

‘‘payphone service,’’ and in particular 

establishes nondiscrimination standards 

applicable to BOC provision of 

payphone service. 

517. With one exception (discussed 

below), we conclude that the 

application of any newly-triggered 

provisions of sections 271 through 276 

to broadband Internet access service is 

not necessary within the meaning of 

section 10(a)(1) or (2), and that 

forbearance from these requirements is 

consistent with the public interest 

under section 10(a)(3). Many of the 

provisions in these sections have no 

current effect. Other provisions in these 

sections impose continuing obligations 

that are at most tangentially related to 

the provision of broadband Internet 

access service. Forbearance from any 

application of these provisions with 

respect to broadband Internet access 

service insofar as they are newly 

triggered by our classification of that 

service will not meaningfully affect the 

charges, practices, classifications, or 

regulations for or in connection with 

that service, consumer protection, or the 

public interest. (Consistent with our 

general approach to forbearance here, 

which seeks to address new 

requirements that could be triggered by 

our classification of broadband Internet 

access service, we do not forbear with 

respect to provisions to the extent that 

they already applied prior to this Order. 

For example, section 271(c) establishes 

substantive standards that a BOC was 

required to meet in order to obtain 

authorization to provide interLATA 

services in an in-region state, and which 

it and must continue to meet in order to 

retain that authorization. In addition, 

section 271(c)(2)(B)(iii), requires that a 

BOC provide nondiscriminatory access 

to poles, ducts, conduits, and rights-ofway in accordance with the 

requirements of section 224 of the Act, 

does not depend upon the classification 

of BOCs’ broadband Internet access 

service. In combination with section 

271(d)(6), this provision provides the 

Commission with an additional 

mechanism to enforce section 224 

against the BOCs. We also do not forbear 

from section 271(d)(6) to the extent that 

it provides for enforcement of the 

provisions we do not forbear from here. 

In addition, while the BOC-specific 

provisions of section 276 theoretically 

could be newly implicated insofar as the 

reclassification of broadband Internet 

access service might result in some 

entities newly being treated as a BOC, 

the bulk of section 276 appears 

independent of the classification of 

broadband Internet access service and 

we thus do not forbear as to those 

provisions.) 

518. Forbearance for certain other 

provisions not meaningfully addressed 

by commenters also flows from our 

analysis of certain provisions that 

commenters did raise or that are 

discussed in greater detail elsewhere. 

First, as described elsewhere, we forbear 

from all ex ante rate regulations, 

tariffing and related recordkeeping and 

reporting requirements insofar as they 

would arise from our classification of 

broadband Internet access service. 

Second, we likewise forbear from 

unbundling and network access 

requirements that would newly apply 

based on the classification decision in 

this Order. It is our predictive judgment 

that other protections—notably the core 

broadband Internet access service 

requirements—will be adequate to 

ensure just, reasonable, and 

nondiscriminatory conduct by providers 

of broadband Internet access service and 

to protect consumers for purposes of 

sections 10(a)(1) and (a)(2). Further, 

informed by our responsibilities under 

section 706, we adopt an incremental 

regulatory approach that we find strikes 

the appropriate public interest balance 

under section 10(a)(3). For these same 

reasons, we forbear from section 221’s 

property records classification and 

valuation provisions, which would be 

used in the sort of ex ante rate 

regulation that we do not find warranted 

for broadband Internet access service. 

Likewise, just as we forbear from 

broader unbundling obligations, that 

same analysis persuades us to forbear 


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from applying section 259’s 

infrastructure sharing and notification 

requirements. 

519. We also grant forbearance from 

other miscellaneous provisions to the 

extent that they would newly apply as 

a result of our classification insofar as 

they do not appear necessary or even 

relevant for broadband Internet access 

service of broadband Internet access 

service. For one, section 226, the 

Telephone Operator Consumer Services 

Improvement Act (‘‘TOCSIA’’), protects 

consumers making interstate operator 

services calls from pay telephones, and 

other public telephones, against 

unreasonably high rates and anticompetitive practices. Section 227(c)(3) 

provides for carriers to have certain 

notification obligations as it relates to 

the requirements of the Telephone 

Consumer Protection Act (TCPA), and 

section 227(e) restricts the provision of 

inaccurate caller identification 

information associated with any 

telecommunications service. Section 

228 regulates the offering of pay-per-call 

services and requires carriers, inter alia, 

to maintain lists of information 

providers to whom they assign a 

telephone number, to provide a short 

description of the services the 

information providers offer, and a 

statement of the cost per minute or the 

total cost for each service. Section 260 

regulates local exchange carrier 

practices with respect to the provision 

of telemessaging services. It is not clear 

how these provisions would be relevant 

to broadband Internet access service, 

and commenters to not provide 

meaningful arguments in that regard. 

Thus, for that reason, as well as the 

continued availability of the core 

broadband Internet access service 

requirements, we find enforcement of 

these provisions, to the extent they 

would newly apply by virtue of our 

classification of broadband Internet 

access service, is not necessary to 

ensure that the charges, practices, 

classifications, or regulations by, for, or 

in connection with broadband providers 

are just and reasonable and are not 

unjustly or unreasonably discriminatory 

under section 10(a)(1). Enforcement also 

is not necessary for the protection of 

consumers under section 10(a)(2), and 

forbearance from applying these 

provisions is consistent with the public 

interest under section 10(a)(3), 

particularly given our conclusion, 

informed by section 706, that it is 

appropriate to proceed incrementally 

here. 

520. We also note that the provisions 

of section 276 underlying the 

Commission’s regulation of inmate 

calling services (ICS) and the ICS rules 

themselves do not appear to vary 

depending on whether broadband 

Internet access service is an 

‘‘information service’’ or 

‘‘telecommunications service.’’ We note, 

however, that The DC Prisoners’ Legal 

Services Project, Inc., et al. (the ICS 

Petitioners) express concern that 

forbearance under this order could be 

misconstrued as a limitation on the 

Commission’s authority with respect to 

any advanced ICS services (such as 

video visitation) that may replace or 

supplement traditional ICS telephone 

calls. It is not our intent to limit in any 

way the Commission’s ability to address 

ICS, particularly given the 

Commission’s finding in 2013 that the 

ICS market ‘‘is failing to protect the 

inmates and families who pay [ICS] 

charges.’’ We therefore find that 

forbearance would fail to meet the 

statutory test of section 10 of the Act, in 

that the protections of section 276 

remain necessary to protect consumers 

and serve the public interest. 

Accordingly, out of an abundance of 

caution we make clear that we are not 

forbearing from applying section 276 to 

the extent applicable to ICS, as well as 

the ICS rules. 

h. Truth-in-Billing Rules 

521. We also find the section 10(a) 

criteria met and forbear from applying 

our truth-in-billing rules insofar as they 

are triggered by our classification of 

broadband Internet access service here. 

The core broadband Internet access 

requirements, including the requirement 

of just and reasonable conduct under 

section 201(b), will provide important 

protections in this context even without 

specific rules. Moreover, even advocates 

of such protections observe that this 

‘‘may require further examination by the 

Commission,’’ and do not actually 

propose that the current truth-in-billing 

rules immediately apply in practice, 

instead recommending that the 

Commission ‘‘temporarily stay these 

rules [and] implement interim 

provisions.’’ They do not explain what 

such interim provisions should be, 

however, and as we explain below we 

are not persuaded that a stay or timelimited forbearance provides advantages 

relative to the approach we adopt here. 

Consequently, as in our analysis above, 

we are not persuaded that our truth-inbilling rules are necessary for purposes 

of sections 10(a)(1) and (a)(2), 

particularly given the availability of the 

core broadband Internet access service 

requirements. Likewise, as above, under 

the tailored regulatory approach we find 

warranted here, informed by our 

responsibilities under section 706, we 

conclude that forbearance is in the 

public interest under section 10(a)(3). 

i. Roaming-Related Provisions and 

Regulations 

522. We find section 10(a) met for 

purposes of granting certain conditional 

forbearance from roaming regulations. 

We recognize that the reclassification 

decisions elsewhere in this Order 

potentially alter the scope of an MBIAS 

provider’s roaming obligations. The 

Commission has previously established 

two different regimes to govern the 

roaming obligations of commercial 

mobile providers. The first regime, 

established in 2007 pursuant to 

authority under sections 201 and 202 of 

the Act, imposes obligations to provide 

automatic roaming on CMRS carriers 

that ‘‘offer real-time, two-way switched 

voice or data service that is 

interconnected with the public switched 

network and utilizes an in-network 

switching facility.’’ Such carriers were 

required, on reasonable request, to 

provide automatic roaming on 

reasonable and not unreasonably 

discriminatory terms and conditions. 

523. Because this regime did not 

extend to data services that were not at 

that time classified as CMRS, the 

Commission adopted another roaming 

regime in 2011 under its Title III 

authority, applicable to ‘‘commercial 

mobile data services,’’ which were 

defined to include all those commercial 

mobile services that are not 

interconnected with the public switched 

network, including (under the definition 

of ‘‘public switched network’’ 

applicable at that time) MBIAS. Under 

this data roaming provision, covered 

service providers were required to offer 

roaming arrangements to other such 

providers on commercially reasonable 

terms and conditions, subject to certain 

specified limits. 

524. Our determination herein to 

reclassify MBIAS as CMRS potentially 

affects the roaming obligations of 

MBIAS providers in two ways. First, 

absent any action by the Commission to 

preserve data roaming obligations, the 

determination that MBIAS is an 

interconnected service would result in 

providers of MBIAS no longer being 

subject to the data roaming rule, which 

as noted above, applies only to noninterconnected services. Second, the 

determination that MBIAS is CMRS 

potentially subjects MBIAS providers to 

the terms of the CMRS roaming rules. 

525. We decide to retain for MBIAS, 

at this time, the roaming obligations that 

applied prior to reclassification of that 

service, consistent with our intent to 

proceed incrementally with regard to 

regulatory changes for MBIAS, and in 


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the absence of significant comment in 

the instant record regarding the specific 

roaming requirements that should apply 

to MBIAS after reclassification. We 

therefore forbear from the application of 

the CMRS roaming rule, section 

20.12(d), to MBIAS providers, 

conditioned on such providers 

continuing to be subject to the 

obligations, process, and remedies 

under the data roaming rule codified in 

section 20.12(e). That condition, 

coupled with the core broadband 

Internet access service requirements that 

remain, persuade us that the forbornefrom rules are not necessary at this time 

for purposes of sections 10(a)(1) and 

(a)(2) and that such conditional 

forbearance is in the public interest 

under section 10(a)(3). We commit, 

however, to commence in the near term 

a separate proceeding to revisit the data 

roaming obligations of MBIAS providers 

in light of our reclassification decisions 

today. Such a proceeding will permit us 

to make an informed decision, based on 

a complete and focused record, on the 

proper scope of MBIAS providers’ 

roaming obligations after 

reclassification. Pending the outcome of 

that reexamination, MBIAS providers 

covered by our conditional forbearance 

continue to be subject to the obligations 

under the data roaming rule, and we 

will take any action necessary to enforce 

those obligations. To ensure, however, 

that providers have certainty regarding 

their roaming obligations pending the 

outcome of the roaming proceeding, we 

further provide that determinations 

adopted in that proceeding will apply 

only prospectively, i.e. only to conduct 

occurring after the effective date of any 

rule changes. The data roaming rule, 

rather than the automatic roaming rule 

or Title II, will govern conduct prior to 

any such changes. 

j. Terminal Equipment Rules 

526. We also determine under section 

10(a) to forbear from applying certain 

terminal equipment rules to the extent 

that they would newly apply by virtue 

of the classification of broadband 

Internet access service. (While Full 

Service Network/TruConnect refer 

generally to our ‘‘Part 68’’ rules, that 

Part also includes our hearing aid 

compatibility rules, and as described 

above, the Commission’s existing 

hearing aid compatibility rules do not 

immediately impose new hearing aid 

compatibility requirements on mobile 

wireless broadband providers by virtue 

of the classification decisions in this 

Order, and we do not forbear from 

applying those rules or section 710 of 

the Act. Section 710 of the Act and our 

hearing aid compatibility rules thus are 

not encompassed by the discussion 

here.) Notably, our open Internet rules 

themselves prevent broadband Internet 

access service providers from restricting 

the use of non-harmful devices, subject 

to reasonable network management. 

(Insofar as any Part 68 rules subject to 

forbearance here also permitted carriers 

to take steps to protect their networks, 

we expect that such steps also would 

constitute reasonable network 

management under our open Internet 

rules.) Consequently, as in our analysis 

above, we are not persuaded that the 

application of terminal equipment rules, 

insofar as they would newly apply to 

broadband Internet access service 

providers by virtue of our classification 

decision here, are necessary for 

purposes of sections 10(a)(1) and (a)(2), 

particularly given the availability of the 

core broadband Internet access service 

requirements, and in particular our 

bright-line rules. Likewise, as above, 

under the tailored regulatory approach 

we find warranted here, informed by 

our responsibilities under section 706, 

we conclude that forbearance is in the 

public interest under section 10(a)(3). 

3. Other Provisions and Regulations 

527. Having discussed in detail here 

and above the analyses that persuade us 

to grant broad forbearance from Title II 

provisions to the extent of our section 

10 authority, we conclude that the same 

analysis justifies forbearance from other 

provisions and regulations insofar as 

they would be triggered by the 

classification of broadband Internet 

access service in this Order. In 

particular, beyond the Title II provisions 

and certain implementing rules 

discussed above, the classification of 

broadband Internet access service could 

give rise to obligations related to 

broadband providers’ provision of that 

service under Title III, Title VI and 

Commission rules. 

• First, certain provisions of Titles III 

and VI and Commission rules (For 

clarity, we note that by ‘‘rules’’ we mean 

both codified and uncodified rules. In 

addition, by ‘‘associated’’ Commission 

rules, we mean rules implementing 

requirements or substantive 

Commission jurisdiction under 

provisions in Title II, III, and/or VI of 

the Act from which we forbear.) 

associated with those Titles or the 

provisions of Title II from which we 

forbear may apply by their terms to 

providers classified in particular ways. 

(The Order’s classification of broadband 

Internet access service could trigger 

requirements that apply by their terms 

to ‘‘common carriers,’’ 

‘‘telecommunications carriers,’’ 

‘‘providers’’ of common carrier or 

telecommunications services, or 

‘‘providers’’ of CMRS or commercial 

mobile services. Similarly, other 

provisions of the Act and Commission 

rules may impose requirements on 

entities predicated on the entities’ 

classification as a ‘‘common carrier,’’ 

‘‘telecommunications carrier,’’ 

‘‘provider’’ of common carrier or 

telecommunications service, or 

‘‘provider’’ of CMRS or commercial 

mobile service without being framed in 

those terms.) As to this first category of 

requirements, and except as to the core 

broadband Internet access service 

requirements, we forbear from any such 

provisions and regulations to the full 

extent of our authority under section 10, 

but only insofar as a broadband provider 

falls within those categories or provider 

classifications by virtue of its provision 

of broadband Internet access service, but 

not insofar as those entities fall within 

those categories of classifications by 

virtue of other services they provide. 

• Second, certain provisions of Titles 

III and VI and Commission rules 

associated with those Titles or the 

provisions of Title II from which we 

forbear may apply by their terms to 

services classified in particular ways. 

(The classification of broadband Internet 

access service as a telecommunications 

service and, in the mobile context, also 

CMRS service under the 

Communications Act, thus could trigger 

any requirements that apply by their 

terms to ‘‘common carrier services,’’ 

‘‘telecommunications services,’’ or 

‘‘CMRS’’ or ‘‘commercial mobile’’ 

services. Similarly, other provisions of 

the Act and Commission rules may 

impose requirements on services 

predicated on a service’s classification 

as a ‘‘common carrier service,’’ 

‘‘telecommunications service,’’ ‘‘CMRS’’ 

or ‘‘commercial mobile’’ service without 

being framed in those terms.) Regarding 

this second category of requirements (to 

the extent not already covered by the 

first category, above), and except as to 

the core broadband Internet access 

service requirements, we forbear from 

any such provisions and regulations to 

the full extent of our authority under 

section 10 specifically with respect to 

broadband Internet access service, but 

do not forbear from these requirements 

as to any other services (if any) that 

broadband providers offer that are 

subject to these requirements. 

• Third, while commenters do not 

appear to have identified such rules, 

there potentially could be other 

Commission rules for which our 

underlying authority derives from 

provisions of the Act all of which we 

forbear from under the first two 

categories of requirements identified 


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above, or under our Title II forbearance 

discussed above, but which are not 

already subject to that identified scope 

of forbearance. To the extent not already 

identified in the first two categories of 

requirements above, and except as to the 

core broadband Internet access service 

requirements, we forbear to the full 

extent of our authority under section 10 

from rules based entirely on our 

authority under provisions we forbear 

from under the first and second 

categories above (or for which the 

forborne-from provisions provide 

essential authority) insofar as the rules 

newly apply as a result of the 

classification of broadband Internet 

access service. 

• Fourth, we include within the 

scope of our broad forbearance for 

broadband Internet access service any 

pre-existing rules with the primary 

focus of implementing the requirements 

and substantive Commission 

jurisdiction in sections 201 and/or 202, 

including forbearing from pre-existing 

pricing, accounting, billing and 

recordkeeping rules. (This forbearance 

would not include rules implementing 

our substantive jurisdiction under 

provisions of the Act from which we do 

not forbear that merely cite or rely on 

sections 201 or 202 in some incidental 

way, such as by, for example, relying on 

the rulemaking authority provided in 

section 201(b). Consistent with our 

discussions above, this category also 

does not include our open Internet 

rules.) As with the rules identified 

under the first and second categories 

above, we do not forbear insofar as a 

provider is subject to these rules by 

virtue of some other service it provides. 

• Fifth, the classification of 

broadband Internet access service as a 

telecommunications service could 

trigger certain contributions to support 

mechanisms or fee payment 

requirements under the Act and 

Commission rules, including some 

beyond those encompassed by the 

categories above. Insofar as any 

provisions or regulations not already 

covered above would immediately 

require the payment of contributions or 

fees by virtue of the classification of 

broadband Internet access service 

(rather than merely providing 

Commission authority to assess such 

contributions or fees) they are included 

within the scope of our forbearance. As 

under the first and second categories 

above, we do not forbear insofar as a 

provider is subject to these contribution 

or fee payments by virtue of some other 

service it provides. 

Just as we found in our analysis of 

Title II provisions, it is our predictive 

judgment that other protections— 

notably the core broadband Internet 

access service requirements—will be 

adequate to ensure just, reasonable, and 

nondiscriminatory conduct by providers 

of broadband Internet access service and 

to protect consumers for purposes of 

sections 10(a)(1) and (a)(2). Further, 

informed by our responsibilities under 

section 706, we adopt an incremental 

regulatory approach that we find strikes 

the appropriate public interest balance 

under section 10(a)(3). These 

collectively persuade us that 

forbearance for the additional categories 

of provisions and regulations above is 

justified to the extent of our section 10 

authority. 

528. We further make clear that our 

approach to forbearance in this Order, 

which excludes certain categories of 

provisions and regulations, effectively 

addresses the concerns of a number of 

commenters regarding the scope of our 

forbearance. First, we forbear here only 

to the extent of our authority under 

section 10 of the Act. Section 10 

provides that ‘‘the Commission shall 

forbear from applying any regulation or 

any provision of this chapter to a 

telecommunications carrier or 

telecommunications service, or class of 

telecommunications carriers or 

telecommunications services’’ if certain 

conditions are met. Certain provisions 

or regulations do not fall within the 

categories of provisions of the Act or 

Commission regulations encompassed 

by that language because they are not 

applied to telecommunications carriers 

or telecommunications services, and we 

consequently do not forbear as to those 

provisions or regulations. 

529. Second, we do not forbear from 

provisions or regulations that are not 

newly triggered by the classification of 

broadband Internet access service. The 

2014 Open Internet NPRM sought 

comment on possible forbearance 

premised on addressing the 

consequences that flowed from any 

classification decisions it might adopt. 

Although some commenters include 

sweeping requests that we forbear from 

all of Title II or the like, in practice, 

they, too, appear focused on the 

consequences of classification 

decisions. Nor do we find on the record 

here that the section 10 criteria met with 

respect to such forbearance, and in 

particular do not find it in the public 

interest, in the context of this item, to 

forbear with respect to requirements 

that already applied to broadband 

Internet access service and providers of 

that service prior to this Order. Rather, 

broadband providers remain free to seek 

relief from such provisions or 

regulations through appropriate filings 

with the Commissions. 

530. A number of commenters’ 

arguments are addressed on one or more 

of these grounds. (In addition to those 

discussed below, these considerations 

explain, for example, why we do not 

grant forbearance with respect to 

sections 303(b), 303(r) and 316, upon 

which we rely for authority for our open 

Internet rules.) For example, as to the 

first set of exclusions, we note that 

section 257 imposes certain obligations 

on the Commission without creating 

enforceable obligations that the 

Commission would apply to 

telecommunications carriers or 

telecommunications services, so we do 

not forbear from applying those 

provisions. For the same reasons, we do 

not forbear with respect to provisions 

insofar as they merely reserve state 

authority. 

531. We further note, for example, 

that the immunity from liability in 

section 230(c) applies to providers or 

users of an ‘‘interactive computer 

service,’’ and its application does not 

vary based on the classification of 

broadband Internet access service here. 

Consequently, it is not covered by the 

scope of forbearance in this order. We 

also note that the restrictions on 

obscene and illicit content in sections 

223 and 231(to the extent enforced)—as 

well as the associated limitations on 

liability—in many cases, do not vary 

with the classification decisions in this 

Order, and thus likewise are not 

encompassed by the forbearance in this 

Order. (As a narrow exception to this 

general conclusion, section 223(c)(1) 

conceivably could be newly applied to 

broadband providers by virtue of the 

classification decisions in this Order. 

No commenter meaningfully argues that 

the Commission should apply this 

provision to broadband providers, and 

that fact, coupled with the other 

protections that remain, persuade us 

that, insofar as the Commission would 

apply this provision, such application is 

not necessary for purposes of sections 

10(a)(1) and (a)(2). Likewise, consistent 

with the tailored regulatory approach 

adopted in this Order, we find it in the 

public interest under section 10(a)(3) to 

forbear insofar as the Commission 

otherwise would newly apply that 

provision to a broadband provider as a 

result of this Order.) To the extent that 

certain of these provisions would 

benefit broadband providers and could 

instead be viewed as provisions that are 

newly applied to broadband providers 

by virtue of the classification decisions 

in this Order, it would better promote 

broadband deployment, and thus better 

serve the public interest, if we continue 

to apply those provisions. We thus find 


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that such forbearance would not be in 

the public interest under section 

10(a)(3). 

532. Some commenters also advocate 

that the Commission not forbear from 

applying ‘‘the provisions of the 

Communications Assistan[ce] for Law 

Enforcement Act under section 229.’’ 

Section 229(a)–(d) direct the 

Commission to adopt rules 

implementing the requirements of 

CALEA and authorize the Commission 

to investigate and enforce those rules. 

Section 229(e) enables providers to 

recover certain costs of CALEA 

compliance. Section 229 is not, by its 

terms, limited to ‘‘telecommunications 

services’’ as defined by the 

Communication Act, and CALEA 

obligations already apply to broadband 

Internet access service. Thus, in 

carrying out section 229, the 

Commission’s role already extended to 

broadband Internet service, and all 

telecommunications carriers subject to 

CALEA are already required to comply 

with all Commission rules adopted 

pursuant to section 229. Declining to 

forbear from applying section 229 and 

our associated rules is consistent with 

the overall approach, discussed above, 

of focusing on addressing newly-arising 

requirements flowing from our 

classification decision, and thus is in 

the public interest. Given that CALEA’s 

statutory obligations will apply 

regardless of any forbearance granted by 

the Commission under the 

Communications Act, and given the lack 

of any substantial argument in the 

record in favor of forbearance from 

section 229, we conclude that 

maintaining the Commission’s existing 

rulemaking and oversight role as 

established by section 229 better 

advances the public interest. As services 

and technologies evolve over time, 

CALEA implementation will need to 

evolve as well. Section 229 establishes 

a rulemaking and oversight role for the 

Commission that helps enable those 

future changes. If we were to forbear 

from section 229 (assuming arguendo 

that we could find the forbearance 

standard to be satisfied), we thus would 

frustrate the ability of CALEA 

implementation to evolve with 

technology, an outcome that we find 

fundamentally inconsistent with the 

continued applicability of CALEA itself 

and therefore with the public interest. 

533. We also do not forbear from 

certain rules governing the wireless 

licensing process. First, our rules 

require applicants for licenses under our 

flexible use rules to designate the 

regulatory status of proposed services 

(i.e., common carrier, non-common 

carrier, or both) in the initial license 

application, and make subsequent 

amendment to the designation, as 

necessary. With regard to these rules, 

we find that forbearance of the 

regulatory status designation would 

result in inaccurate license information 

and therefore is not warranted. In 

particular, we conclude that such 

forbearance would be contrary to the 

public interest under section 10(a)(3). 

534. Second, sections 1.933 and 1.939 

of our rules, 47 CFR 1.933, 1.939, 

implementing sections 309(b) and (d)(1) 

of the Act, 47 U.S.C. 309(b), (d)(1), set 

out processes for license applications 

for authorization, major modification, 

major amendment, substantial 

assignment, or transfer. Applications 

that involve, in whole or in part, 

licenses to be used for ‘‘Wireless 

Telecommunications Services,’’ as 

defined in section 1.907 of our rules, are 

subject to a public notice process 

providing opportunity for petitions to 

deny, but applications that involve only 

‘‘Private Wireless Services,’’ as defined 

in section 1.907 of our rules are not 

subject to that process. 

535. With regard to these rules, we 

find that reclassification is unlikely to 

trigger a different process under these 

rules, for two reasons. We note that 

mobile BIAS today is being provided 

using licenses that are governed under 

our flexible use rules (i.e., under parts 

20, 22, 24, 26, and 27) and that are being 

used as well to provide services, such as 

mobile voice, already provided as 

CMRS. Thus, these applications have 

been subject to these provisions because 

they have also been used to provide 

CMRS services. To the extent applicants 

seek licenses for reclassified service 

under other parts, such as Part 101, or 

are otherwise not covered by the above 

reasoning, we find that forbearance from 

these procedures is not warranted, as 

the public notice process requirements 

are important to ensure that common 

carrier licensing serves the public 

interest. Accordingly, we do not find 

forbearance from applying these rules in 

the public interest under section 

10(a)(3), and thus we do not forbear 

from application of section 309(b) and 

(d)(1) of the Act, or from rules 1.931, 

1.933, 1.939, 22.1110, and 27.10. 

D. Potential Objections to Our General 

Approach to Forbearance for Broadband 

Internet Access Service 

536. While we address above specific 

arguments against forbearance as to 

particular provisions or requirements, 

we note that we also reject certain 

overarching concerns about our 

forbearance decision here. For one, we 

grant substantial forbearance in this 

item, rather than deferring such 

forbearance decisions to future 

proceedings. We are able to conclude on 

this record that the section 10(a) criteria 

are met with respect to the forbearance 

we grant, and taking such action here 

enables us to strike the right regulatory 

and deregulatory balance regarding 

broadband Internet access service, as 

discussed above. Under these 

circumstances we reject arguments that 

we should defer forbearance to future 

proceedings. Likewise, given our 

finding that the section 10(a) criteria are 

met for the forbearance adopted here, 

we reject generalized arguments that the 

scope of forbearance here should be the 

same as that historically granted in the 

CMRS context. We conclude that such 

overarching claims do not address 

distinguishing factors here, including 

our decision that it is in the public 

interest to proceed incrementally given 

the regulatory experience of the nearterm past coupled with the 

Commission’s responsibilities under 

section 706 of the 1996 Act, as 

discussed above. Further, because we 

grant substantial forbearance in this 

Order rather than deferring those issues 

to a future proceeding, we also reject 

concerns that the process of obtaining 

forbearance will be burdensome or 

uncertain, insofar as they are based on 

a presumption that such relief only 

would be granted via subsequent 

proceedings. (The posture here is 

distinguishable from the circumstances 

underlying the Brand X case, where a 

court had classified cable modem 

service as a telecommunications service 

without simultaneous forbearance of the 

sort we adopt here, and thus we reject 

arguments seeking to rely on court 

filings there.) 

537. Nor are we persuaded by 

arguments that the adoption of interim 

rules or the stay of all but certain rules 

should be used in lieu of forbearance, 

since those arguments do not explain in 

meaningful detail what specific interim 

rules would be adopted or the scope of 

what rules would be excluded from any 

stay, nor how, absent forbearance, 

interim rules or a stay by the 

Commission could address 

requirements imposed by the Act, rather 

than merely by Commission regulation. 

To the extent that commenters’ 

arguments instead advocate that 

forbearance should be interim or timelimited, under today’s approach, we 

retain adequate authority to modify our 

regulatory approach in the future, 

should circumstances warrant. We thus 

are not persuaded that there is any 

material, incremental advantage or 

benefit to adopting forbearance on an 

interim or time-limited basis. 


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538. We also reject claims that the 

Commission cannot grant forbearance 

here because it did not provide adequate 

notice and an opportunity for comment. 

We need not and do not address here 

whether forbearance is, in all cases, 

informal rulemaking, because in this 

instance we have, in fact, proceeded via 

rulemaking and provided sufficient 

notice and an opportunity to comment 

in that regard. section 553(b) and (c) of 

the APA requires agencies to give public 

notice of a proposed rulemaking that 

includes ‘‘either the terms or substance 

of the proposed rule or a description of 

the subjects and issues involved’’ and to 

give interested parties an opportunity to 

submit comments on the proposal. The 

notice ‘‘need not specify every precise 

proposal which [the agency] may 

ultimately adopt as a rule’’; it need only 

‘‘be sufficient to fairly apprise interested 

parties of the issues involved.’’ 

Moreover, the APA’s notice 

requirements are satisfied where the 

final rule is a ‘‘logical outgrowth’’ of the 

actions proposed. As long as parties 

should have anticipated that the rule 

ultimately adopted was possible, it is 

considered a ‘‘logical outgrowth’’ of the 

original proposal, and there is no 

violation of the APA’s notice 

requirements. 

539. Those notice standards are 

satisfied with respect to the forbearance 

adopted here. The 2014 Open Internet 

NPRM observed: 

If the Commission were to reclassify 

broadband Internet access service as 

described above or classify a separate 

broadband service provided to edge 

providers as a ‘‘telecommunications service,’’ 

such a service would then be subject to all 

of the requirements of the Act and 

Commission rules that would flow from the 

classification of a service as a 

telecommunications service or a common 

carrier service. 

Citing section 10 of the Act, the 

Commission then sought comment ‘‘on 

the extent to which forbearance from 

certain provisions of the Act or our rules 

would be justified’’ should the 

Commission adopt such an approach 

‘‘in order to strike the right balance 

between minimizing the regulatory 

burden on providers and ensuring that 

the public interest is served.’’ (The 

Commission further sought comment on 

‘‘which provisions should be exempt 

from forbearance and which should 

receive it’’ based on whether such 

action would ‘‘protect and promote 

Internet openness.’’ Id. at 5616, para. 

154. These are the factors that the 

Commission did, in fact, use in 

evaluating the section 10(a) criteria and 

deciding whether and how much 

forbearance to grant here.) ‘‘For mobile 

broadband services,’’ the Commission 

also sought ‘‘comment on the extent to 

which forbearance should apply, if the 

Commission were to classify mobile 

broadband Internet access service as a 

CMRS service subject to Title II.’’ 

Collectively, the Commission thus 

provided notice of possible forbearance 

as to any provision of the Act or 

Commission rules triggered by the 

classification of broadband Internet 

access service of the sort we adopt in 

this Order. (Within that scope, the 

Commission also sought more detailed 

comment on specific aspects of the 

possible forbearance it might adopt, 

discussing similar questions raised in 

the 2010 Broadband Classification NOI, 

particular statutory provisions from 

which the Commission might not 

forbear, and particular approaches the 

Commission might use to evaluating 

forbearance. Moreover, as discussed in 

the preceding sections above, the 2014 

Open Internet NPRM yielded a robust 

record regarding forbearance.) The 

forbearance we grant here from applying 

certain provisions and regulations 

newly triggered by our classification 

decisions in order to strike the right 

regulatory balance for broadband 

Internet access services consistent with 

the objective of preserving and 

protecting Internet openness is squarely 

within that scope of notice provided by 

the 2014 Open Internet NPRM. 

540. We also view as misguided 

complaints about the potential for our 

forbearance decisions to be challenged 

in court or reversed in the future by the 

Commission. Having concluded that 

broadband Internet access service is a 

telecommunications service, certain 

legal consequences under the Act flow 

from that by default. We grant in this 

order the substantial forbearance from 

those provision and other Commission 

regulations to the extent that we find 

warranted at this time under the section 

10 framework. We thereby provide 

broadband providers significant 

regulatory certainty. (Perfect regulatory 

certainty would not be feasible under 

any classification. For example, even 

just as to rules adopted under section 

706 of the 1996 Act parties theoretically 

could raise judicial challenges as to the 

adequacy of the Commission’s rules in 

meeting the objectives of section 706 

and a future Commission likewise might 

elect to modify those rules.) We thus are 

not persuaded to alter our approach to 

forbearance based on these arguments. 

541. We recognize that in our 

approach to forbearance for broadband 

Internet access service above, we are not 

first exhaustively determining 

provision-by-provision and regulationby-regulation whether and how 

particular provisions and rules apply to 

this service. The Commission has broad 

discretion whether to issue a declaratory 

ruling, which is what would be entailed 

by such an undertaking. We exercise our 

discretion not to do so here, except to 

the limited extent necessary to address 

arguments in the record regarding 

specific requirements. For one, the 

Commission need not resolve whether 

or how a provision or regulation applies 

before evaluating the section 10(a) 

criteria—rather, it can conduct that 

evaluation and, if warranted, grant 

forbearance within the scope of its 

section 10 authority assuming arguendo 

that the provisions or regulations apply. 

In addition, as discussed in greater 

detail above, the Commission is 

proceeding incrementally here. As the 

D.C. Circuit has recognized, within the 

statutory framework that Congress 

established, the Commission ‘‘possesses 

significant, albeit not unfettered, 

authority and discretion to settle on the 

best regulatory or deregulatory approach 

to broadband.’’ Thus, to achieve the 

balance of regulatory and deregulatory 

policies adopted here for broadband 

Internet access service, we need not— 

and thus do not—first resolve 

potentially complex and/or disputed 

interpretations and applications of the 

Act and Commission rules that could 

create precedent with unanticipated 

consequences for other services beyond 

the scope of this proceeding, and which 

would not alter the ultimate regulatory 

outcome in this Order in any event. 

VI. Constitutional Considerations 

542. The actions we take today are 

fully consistent with the Constitution. 

Some commenters contend that the 

open Internet rules burden broadband 

providers’ First Amendment rights and 

effect uncompensated takings of private 

property under the Fifth Amendment. 

We examine these arguments below and 

find them unfounded. 

A. First Amendment 

1. Free Speech Rights 

543. The rules we adopt today do not 

curtail broadband providers’ free speech 

rights. When engaged in broadband 

Internet access services, broadband 

providers are not speakers, but rather 

serve as conduits for the speech of 

others. The manner in which broadband 

providers operate their networks does 

not rise to the level of speech protected 

by the First Amendment. As 

telecommunications services, 

broadband Internet access services, by 

definition, involve transmission of 

network users’ speech without change 

in form or content, so open Internet 


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rules do not implicate providers’ free 

speech rights. And even if broadband 

providers were considered speakers 

with respect to these services, the rules 

we adopt today are tailored to an 

important government interest— 

protecting and promoting the open 

Internet and the virtuous cycle of 

broadband deployment—so as to ensure 

they would survive intermediate 

scrutiny. 

544. This is not to say that we are 

indifferent to matters of free speech on 

the Internet. To the contrary, our rules 

serve First Amendment interests of the 

highest order, promoting ‘‘the widest 

possible dissemination of information 

from diverse and antagonistic sources’’ 

and ‘‘assuring that the public has access 

to a multiplicity of information sources’’ 

by preserving an open Internet. We 

merely acknowledge that the free speech 

interests we advance today do not 

inhere in broadband providers with 

respect to their provision of broadband 

Internet access services. 

545. Some commenters contend that 

because broadband providers distribute 

their own and third-party content to 

customers, rules that govern the 

transmission of Internet content over 

broadband networks violate their free 

speech rights. CenturyLink and others 

compare the operation of broadband 

Internet access service to ‘‘requiring a 

cable operator to carry all broadcast 

stations,’’ and contend that the rules 

adopted today ‘‘displace access service 

providers’ editorial control over their 

networks’’ which would otherwise 

constitute protected speech under the 

First Amendment. Other commenters 

respond that broadband providers are 

not engaged in speech when providing 

broadband Internet access services, so 

they are not entitled to First 

Amendment protections in their 

operation of these services. Consistent 

with our determination in the 2010 

Open Internet Order, we find that when 

broadband providers offer broadband 

Internet access services, they act as 

conduits for the speech of others, not as 

speakers themselves. 

546. Claiming free speech protections 

under the First Amendment necessarily 

involves demonstrating status as a 

speaker—absent speech, such rights do 

not attach. In determining the limits of 

the First Amendment’s protections for 

courses of conduct, the Supreme Court 

has ‘‘extended First Amendment 

protections only to conduct that is 

inherently expressive.’’ To determine 

whether an actor’s conduct possesses 

‘‘sufficient communicative elements to 

bring the First Amendment into play,’’ 

the Supreme Court has asked whether 

‘‘[a]n intent to convey a particularized 

message was present and [whether] the 

likelihood was great that the message 

would be understood by those who 

viewed it.’’ 

547. Broadband providers’ conduct 

with respect to broadband Internet 

access services does not satisfy this test, 

and analogies to other forms of media 

are unavailing. CenturyLink and others 

compare their provision of broadband 

service to the operation of a cable 

television system, and point out that the 

Supreme Court has determined that 

cable programmers and cable operators 

engage in editorial discretion protected 

by the First Amendment. As a factual 

matter, broadband Internet access 

services are nothing like the cable 

service at issue in Turner I. In finding 

that cable programmers and cable 

operators are entitled to First 

Amendment protection, the Turner I 

court began with the uncontested 

assertion that ‘‘cable programmers and 

operators engage in and transmit 

speech, and they are entitled to the 

protection of the speech and press 

provisions of the First Amendment.’’ 

The court went on to explain that ‘‘cable 

programmers and operators ‘see[k] to 

communicate messages on a wide 

variety of topics and in a wide variety 

of formats’ ’’ through ‘‘original 

programming or by exercising editorial 

discretion over which stations or 

programs to include in its repertoire.’’ 

(Likewise, while a newspaper publisher 

chooses which material to publish, 

broadband providers facilitate access to 

all or substantially all Internet 

endpoints. See Miami Herald Publishing 

Co. v. Tornillo, 418 U.S. 241, 257 (1974). 

In contrast, broadband Internet access 

services more closely resemble the 

‘‘conduit for news, comment, and 

advertising’’ from which the Court 

distinguishes newspaper publishing.) 

Cable operators thus engage in protected 

speech when they both engage in and 

transmit speech with the intent to 

convey a message either through their 

own programming directly or through 

contracting with other programmers for 

placement in a cable package. 

548. Broadband providers, however, 

display no such intent to convey a 

message in their provision of broadband 

Internet access services—they do not 

engage in speech themselves but serve 

as a conduit for the speech of others. 

The record reflects that broadband 

providers exercise little control over the 

content which users access on the 

Internet. Broadband providers represent 

that their services allow Internet end 

users to access all or substantially all 

content on the Internet, without 

alteration, blocking, or editorial 

intervention. End users, in turn, expect 

that they can obtain access to all content 

available on the Internet, without the 

editorial intervention of their broadband 

provider. While these characteristics 

certainly involve transmission of others’ 

speech, the accessed speech is not 

edited or controlled by the broadband 

provider but is directed by the end user. 

(To be sure, broadband providers engage 

in some reasonable network 

management designed to protect their 

networks from malicious content and to 

relieve congestion, but these practices 

bear little resemblance to the editorial 

discretion exercised by cable operators 

in choosing programming for their 

systems.) In providing these services, 

then, broadband providers serve as mere 

conduits for the messages of others, not 

as agents exercising editorial discretion 

subject to First Amendment protections. 

549. Moreover, broadband is not 

subject to the same limited carriage 

decisions that characterize cable 

systems—the Internet was designed as a 

decentralized ‘‘network of networks’’ 

which is capable of delivering an 

unlimited variety of content, as chosen 

by the end user. In contrast, the Turner 

I court emphasized that the rules under 

consideration in that case regulated 

cable speech by ‘‘reduc[ing] the number 

of channels over which cable operators 

exercise unfettered control’’ and 

‘‘render[ing] it more difficult for cable 

programmers to compete for carriage on 

the limited channels remaining.’’ 

Neither of these deprivations of editorial 

discretion translates to the Internet as a 

content platform. The arrival of one 

speaker to the network does not reduce 

access to competing speakers; nor are 

broadband providers limited by our 

rules in the direct exercise of their free 

speech rights. Lacking the exercise of 

editorial control and an intent to convey 

a particularized message, we find that 

our rules regulate the unexpressive 

transmission of others’ speech over 

broadband Internet access services, not 

the speech of broadband providers. As 

our rules merely affect what broadband 

providers ‘‘must do . . . not what they 

may or may not say,’’ the provision of 

broadband Internet access services falls 

outside the protections of the First 

Amendment outlined by the court in 

Turner I. (We further conclude that 

broadband providers’ conduct is not 

sufficiently expressive to warrant First 

Amendment protection, as the provision 

of broadband Internet access services is 

not ‘‘inherently expressive,’’ but would 

require significant explanatory speech 

to acquire any characteristics of speech.) 

550. Our conclusion that broadband 

Internet access service providers act as 

conduits rather than speakers holds true 

regardless of how they are classified 


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under the Act. But we think this is 

particularly evident given our 

classification of broadband Internet 

access services as telecommunications 

services subject to Title II. 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.’’ The Act also 

provides for common carrier treatment 

of any provider to the extent it is 

engaged in providing 

telecommunications services. In the 

communications context, common 

carriage requires that end users 

‘‘communicate or transmit intelligence 

of their own design and choosing.’’ In 

section IV, we have found that 

broadband Internet access services fall 

within the definitions of 

‘‘telecommunications’’ and 

‘‘telecommunications services’’ subject 

to Title II common carrier regulation. By 

definition, then, the provision of 

telecommunications service does not 

involve the exercise of editorial control 

or judgment. (We also note that the 

requirement under Computer II that 

facilities-based providers of ‘‘enhanced 

services’’ separate out and offer on a 

common carrier basis the ‘‘basic 

service’’ transmission component 

underlying their enhanced services, a 

requirement reflected in the 1996 Act’s 

distinction between 

‘‘telecommunications services’’ and 

‘‘information services’’ was never held 

to raise First Amendment concerns. The 

Supreme Court has acknowledged the 

distinction between common carriers 

and entities with robust First 

Amendment rights in numerous 

contexts.) 

551. We also take note that, in other 

contexts, broadband providers have 

claimed immunity from copyright 

violations and other liability for 

material distributed on their networks 

because they lack control over what end 

users transmit and receive. Broadband 

providers are not subject to subpoena in 

a copyright infringement case because 

as a provider it ‘‘act[s] as a mere conduit 

for the transmission of information sent 

by others.’’ Acknowledging the 

unexpressive nature of their 

transmission function, Congress has also 

exempted broadband providers from 

defamation liability arising from content 

provided by other information content 

providers on the Internet. Given the 

technical characteristics of broadband as 

a medium and the representations of 

broadband providers with respect to 

their services, we find it implausible 

that broadband providers could be 

understood to being conveying a 

particularized message in the provision 

of broadband Internet access service. 

552. Even if open Internet rules were 

construed to implicate broadband 

providers’ rights as speakers, our rules 

would not violate the First Amendment 

because they would be considered 

content-neutral regulations which easily 

satisfy intermediate scrutiny. In 

determining whether a regulation is 

content-based or content-neutral, the 

‘‘principal inquiry . . . is whether the 

government adopted a regulation of 

speech because of [agreement or] 

disagreement with the message it 

conveys.’’ The open Internet rules 

adopted today apply independent of 

content or viewpoint. Instead, they are 

triggered by a broadband provider 

offering broadband Internet access 

services. The rules are structured to 

operate in such a way that no speaker’s 

message is either favored or disfavored, 

i.e. content neutral. 

553. A content-neutral regulation will 

survive intermediate scrutiny if ‘‘it 

furthers an important or substantial 

government interest . . . unrelated to 

the suppression of free expression,’’ and 

if ‘‘the means chosen’’ to achieve that 

interest ‘‘do not burden substantially 

more speech than is necessary.’’ The 

government interests underlying this 

Order are clear and numerous. Congress 

has expressly tasked the Commission 

with ‘‘encourag[ing] the deployment on 

a reasonable and timely basis of 

advanced telecommunications 

capability to all Americans,’’ and has 

elsewhere explained that it is the policy 

of the United States to ‘‘promote the 

continued development of the Internet 

and other interactive computer services 

and other interactive media.’’ 

Additionally, the Verizon court 

accepted the Commission’s finding that 

‘‘Internet openness fosters the edgeprovider innovation that drives [the] 

‘virtuous cycle.’ ’’ As discussed above, 

this Order pursues these government 

interests by preserving an open Internet 

to encourage competition and remove 

impediments to infrastructure 

investment, while enabling consumer 

choice, end-user control, free 

expression, and the freedom to innovate 

without permission. 

554. Indeed, rather than burdening 

free speech, the rules we adopt today 

ensure that the Internet promotes 

speech by ensuring a level playing field 

for a wide variety of speakers who might 

otherwise be disadvantaged. As Turner 

I affirmed ‘‘assuring that the public has 

access to a multiplicity of information 

sources is a governmental purpose of 

the highest order, for it promotes values 

central to the First Amendment.’’ (The 

Turner I Court continued: ‘‘Indeed, it 

has long been a basic tenet of national 

communications policy that the widest 

possible dissemination of information 

from diverse and antagonistic sources is 

essential to the welfare of the public.’’) 

Based on clear legislative interest in 

furthering broadband deployment and 

the paramount government interest in 

assuring that the public has access to a 

multiplicity of information sources, 

these interests clearly qualify as 

substantial under intermediate scrutiny. 

555. Additionally, the rules here are 

sufficiently tailored to accomplish these 

government interests. The effect on 

speech imposed by these rules is 

minimal. The rules do not ‘‘burden 

substantially more speech than 

necessary’’ because they do not burden 

any identifiable speech—the rules we 

adopt today apply only to broadband 

providers’ conduct with regard to their 

broadband Internet access services. 

Providers remain free to engage in the 

full panoply of protected speech 

afforded to any other speaker. They are 

free to offer ‘‘edited’’ services and 

engage in expressive conduct through 

the provision of other data services, as 

well. 

556. Verizon also contends that the 

open Internet rules are impermissible 

under Citizens United because they 

result in differential treatment of 

providers of broadband service and 

other connected IP services. Our rules 

governing the practices of broadband 

providers differ markedly from the 

statutory restrictions on political speech 

at issue in Citizens United. Our rules do 

not impact core political speech, where 

the ‘‘First Amendment has its fullest 

and most urgent application.’’ By 

contrast, the open Internet rules apply 

only to the provision of broadband 

services in a commercial context, so 

reliance on the strict scrutiny standards 

applied in Citizens United is inapt. As 

described above, intermediate scrutiny 

under Turner I would be the controlling 

standard of review if broadband 

providers were found to be speakers. If 

a court were to find differential 

treatment under our rules, though, they 

would be justified under Turner I 

because speaker-based distinctions can 

be deemed permissible so long as they 

are ‘‘ ‘justified by some special 

characteristic of’ the particular medium 

being regulated.’ ’’ The ability and 

incentive of broadband providers to 

impose artificial scarcity and pick 

winners and losers in the provision of 

their last-mile broadband services is just 

such a special characteristic justifying 

differential treatment. 

557. In sum, the rules we adopt today 

do not unconstitutionally burden any of 


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the First Amendment rights held by 

broadband providers. Broadband 

providers are conduits, not speakers, 

with respect to broadband Internet 

access services. Even if they were 

engaged in speech with respect to these 

services, the rules we adopt today are 

tailored to the important government 

interest in maintaining an open Internet 

as a platform for expression, among 

other things. 

2. Compelled Disclosure 

558. The disclosure requirements 

adopted as a part of our transparency 

rule also fall well within the confines of 

the First Amendment. As explained 

above, these required disclosures serve 

important government purposes, 

ensuring that end users and edge 

providers have accurate and accessible 

information about broadband providers’ 

services. This information is central 

both to preventing consumer deception 

and to the operation of the virtuous 

cycle of innovation, consumer demand, 

and broadband deployment. 

559. CenturyLink contends that the 

disclosure requirements under the 

transparency rule violate the First 

Amendment by compelling speech 

without a reasonable basis. They argue 

that the Commission has not established 

a potential problem which these 

disclosures are necessary to remedy and 

that this is fatal to the rules under the 

First Amendment. This argument 

misapprehends both the factual 

justification for the transparency rules 

and the constitutional legal standard 

against which any disclosure 

requirements would be evaluated by the 

courts. 

560. The Supreme Court has made 

plain in Zauderer v. Office of 

Disciplinary Counsel of Supreme Court 

of Ohio that the government has broad 

discretion in requiring the disclosure of 

information to prevent consumer 

deception and ensure complete 

information in the marketplace. Under 

Zauderer’s rational basis test, 

mandatory factual disclosures will be 

sustained ‘‘as long as disclosure 

requirements are reasonably related to 

the State’s interest in preventing 

deception to consumers.’’ As the Court 

observed, ‘‘the First Amendment 

interests implicated by disclosure 

requirements are substantially weaker 

than those at stake when speech is 

actually suppressed;’’ the speaker’s 

interest is ‘‘minimal.’’ The D.C. Circuit 

recently reaffirmed these principles in 

American Meat Institute v. United 

States Department of Agriculture, an en 

banc decision in which the Court joined 

the First and Second Circuit Courts of 

Appeals in recognizing that other 

government interests beyond preventing 

consumer deception may be invoked to 

sustain a disclosure mandate under 

Zauderer. 

561. The transparency rule clearly 

passes muster under these precedents. 

Preventing consumer deception in the 

broadband Internet access services 

market lies at the heart of the 

transparency rule we adopt today. The 

Commission has found that broadband 

providers have the incentive and ability 

to engage in harmful practices, as 

discussed above in section III.B.2. In the 

2010 Open Internet Order, we found 

that ‘‘disclosure ensures that end users 

can make informed choices regarding 

the purchase and use of broadband 

service.’’ Since the original transparency 

rule was promulgated, the Commission 

has received hundreds of complaints 

regarding advertised rates, slow or 

congested services, data caps, and other 

potentially deceptive practices. 

Similarly, the enhancements to the 

transparency rule which we adopt today 

are designed to prevent confusion to all 

consumers of the broadband providers’ 

services—end-users and edge providers 

alike. Tailored disclosures promise to 

provide a metric against which these 

customers can judge whether their 

broadband connections satisfy the 

speeds, bandwidth, and other terms 

advertised by broadband providers. 

562. Further buttressing these 

disclosure requirements are numerous 

other government interests permitted 

under American Meat Institute. As 

acknowledged by the D.C. Circuit in 

Verizon, broadband providers have both 

the economic incentive and the 

technical ability to interfere with thirdparty edge providers’ services by 

imposing discriminatory restrictions on 

access and priority. The disclosures we 

require under today’s transparency rule 

serve to curb those incentives by 

shedding light on the business practices 

of broadband providers. Accurate 

information about broadband provider 

practices encourages the competition, 

innovation, and high-quality services 

that drive consumer demand and 

broadband investment and deployment. 

Tailored disclosures further amplify 

these positive effects by ensuring that 

edge providers have critical network 

information necessary to develop 

innovative new applications and 

services and that end users have 

confidence in the broadband providers’ 

network management and business 

practices. In sum, the other government 

interests supporting the rules in 

addition to preventing consumer 

deception—preserving an open Internet 

to encourage competition and remove 

impediments to infrastructure 

investment, while enabling consumer 

choice, end-user control, free 

expression, and the freedom to innovate 

without permission—are substantial and 

justify our transparency requirements. 

B. Fifth Amendment Takings 

563. The open Internet rules also 

present no cognizable claims under the 

Fifth Amendment’s Takings Clause. 

Today’s decision simply identifies as 

common carriage the services that 

broadband Internet access service 

providers already offer in a manner that 

carries with it certain statutory duties. 

Regulatory enforcement of those duties 

has never been held to raise takings 

concerns. Correspondingly, our rules do 

not rise to the level of a per se taking 

because they do not grant third parties 

a right to physical occupation of the 

broadband providers’ property. Finally, 

they do not constitute a regulatory 

taking because they actually enhance 

the value of broadband networks by 

protecting the virtuous cycle that drives 

innovation, user adoption, and 

infrastructure investment. 

564. As an initial matter, we note that 

our reclassification of broadband 

Internet access service does not result 

from compelling the common carriage 

offering of those services, contrary to the 

claims of some broadband providers. 

Rather, our decision simply identifies as 

common carriage the services that 

broadband Internet access service 

providers already voluntarily offer in a 

manner that, under the Communications 

Act, carries with it certain statutory 

duties, which have never been held to 

raise takings concerns. Today’s Order 

recognizes that broadband Internet 

access service is a telecommunications 

service under Title II of the Act. While 

certain common carriage obligations 

attach to recognition of this fact, those 

requirements operate by virtue of the 

statutory structure we interpret, not in 

service to a discretionary ‘‘policy goal 

the Commission seeks to advance.’’ 

Such statutory obligations have never 

before posed takings issues, and we 

conclude that today’s Order, likewise, 

does not violate the Fifth Amendment. 

565. Verizon specifically contends 

that without either a finding of 

monopoly power or a restriction on 

government entry, ‘‘compelled common 

carriage would constitute a government 

taking.’’ They cite approvingly Judge 

Wilkey’s observation in NARUC I that 

‘‘early common carriage regulations 

were ‘challenged as deprivations of 

property without due process.’ ’’ 

However, Judge Wilkey continues in the 

next sentence to explain that Congress 

has regularly imposed common carrier 

obligations without a showing of 


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monopoly power or entry restrictions. 

Verizon’s suggestion, when extended to 

its logical conclusion, would necessitate 

rendering unconstitutional any common 

carriage obligations outside of true 

government-sponsored monopolies. The 

courts have taken a much narrower view 

of both the characteristics necessary for 

common carrier status and the effect of 

that status on takings claims when 

present in a non-monopoly context. 

Correspondingly, we conclude that 

today’s classifications, without a 

showing of monopoly power do not 

constitute takings under the Fifth 

Amendment. 

1. Per Se Takings 

566. Some commenters argue that our 

rules would effect a per se taking by 

granting third parties a perpetual 

easement onto broadband providers’ 

facilities, a form of physical occupation. 

These arguments mischaracterize the 

nature of the rules we adopt today and 

misapply Fifth Amendment 

jurisprudence. To qualify as a per se 

taking, the challenged government 

action must authorize a permanent 

physical occupation of private property. 

(The government may also commit a per 

se taking by completely depriving an 

owner of all economically beneficial use 

of her property. However, the record 

does not reflect a concern among 

commenters that our actions today 

deprive broadband providers of all 

economically beneficial use of their 

property—nor do we find one merited— 

so we limit our discussion to the 

permanent physical occupation variety 

of per se takings.) This rule, however, is 

‘‘very narrow’’ and it does not ‘‘question 

the equally substantial authority 

upholding a State’s broad power to 

impose appropriate restrictions upon an 

owner’s use of his property.’’ The 

Supreme Court has advised that a per se 

taking is ‘‘relatively rare and easily 

identified’’ and ‘‘presents relatively few 

problems of proof.’’ 

567. Under this formulation, today’s 

Order does not impose a per se taking 

on broadband providers. Regulation of 

the transmissions travelling over a 

broadband providers’ property differs 

substantially from physical occupations 

which are the hallmark of per se takings, 

such as the installation of cable 

equipment at issue in Loretto v. 

Teleprompter CATV Corp. We do not 

require the permanent installation of 

any third-party equipment at broadband 

providers’ network facilities, or deprive 

broadband providers of existing 

property interests in their networks—a 

broadband provider retains complete 

control over its property. (The Supreme 

Court has further cabined this per se 

takings rule by noting that some 

permanent incursions onto private 

property could be acceptable if the 

property owner owned the installation 

and retained discretion in how to 

deploy it. Were our rules found to 

impose a permanent physical 

occupation on broadband providers’ 

networks, broadband services seem to 

fall squarely within this exception. 

Broadband Internet access services are 

characterized as distinctly user-directed. 

Further, providers retain discretion in 

the deployment of their facilities and 

are free to manage traffic through 

reasonable network management.) Our 

rules merely regulate the use of a 

broadband Internet access provider’s 

network—they are neither physical nor 

permanent occupations of private 

property. Courts have repeatedly 

declined to extend per se takings 

analysis to rules regulating the 

transmission of communications traffic 

over a provider’s facilities, and we 

believe that these decisions comport 

with the Supreme Court’s perspective 

that permanent physical occupation of 

property is a narrow category of takings 

jurisprudence and is ‘‘easily 

identifiable’’ when it does occur. 

568. Moreover, to the extent that 

broadband providers voluntarily open 

their networks to end users and edge 

providers, reasonable regulation of the 

use of their property poses no takings 

issue. When owners voluntarily invite 

others onto their property—through 

contract or otherwise—the courts will 

not find that a permanent physical 

occupation has occurred. So long as 

property owners remain free to avoid 

physical incursions on their property by 

discontinuing the services to which it 

has been dedicated, reasonable conduct 

regulations can be imposed on the use 

of such properties without raising per se 

takings concerns. In point of fact, 

broadband providers regularly invite 

third parties to transmit signals through 

their physical facilities by contracting 

with end users to provide broadband 

Internet access service and promising 

access to all or substantially all Internet 

endpoints. Our rules do not compel 

broadband providers to offer this 

service—instead our rules simply 

regulate broadband providers’ conduct 

with respect to traffic which currently 

freely flows over their facilities. Thus, to 

the extent that broadband providers 

allow any customer to transmit or 

receive information over its network, 

the imposition of reasonable conduct 

rules on the provision of broadband 

Internet access services does not 

constitute a per se taking. Furthermore, 

even if the rules did impose a type of 

physical occupation on the facilities of 

broadband providers, such an 

imposition is not an unconstitutional 

taking because broadband providers are 

compensated for the traffic passing over 

their networks. (With respect to the 

rules governing the broadband Internet 

access service, broadband providers are 

compensated through the imposition of 

subscription fees on their end users.) 

2. Regulatory Takings 

569. Nor do the rules we adopt today 

constitute a regulatory taking. 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.’’ Directing analysis of these 

factors is a common touchstone— 

whether the regulatory actions taken are 

‘‘functionally equivalent to the classic 

taking in which government directly 

appropriates private property or ousts 

the owner from his domain.’’ Open 

Internet rules do not implicate such a 

deprivation of value or control over the 

networks of broadband providers, and 

so pose no regulatory takings issues. 

570. The economic impact of the rules 

we adopt today is limited because, in 

most circumstances, the Internet 

operates in an open manner today. 

Indeed, rather than reducing the value 

of broadband provider property, today’s 

rules likely serve to enhance the value 

of broadband networks by promoting 

innovation on the edge of the network, 

thereby driving consumer demand for 

broadband Internet access and 

increasing the networks’ value. Further, 

today’s Order does not so burden 

broadband providers’ discretion in 

managing and deploying their networks 

to effectively ‘‘oust’’ them from 

ownership and control of their 

networks. While we have adopted a set 

of bright-line rules today for some 

practices, broadband providers are still 

afforded a great deal of discretion to 

enter into individualized arrangements 

with respect to the provision of 

broadband Internet access services 

under the no-unreasonable interference/ 

disadvantage standard. The limited 

scope of the open Internet rules also 

injects flexibility into our regulatory 

framework and provides sufficient 

property protections to take our rules 

outside the ambit of the Fifth 

Amendment. 

571. Likewise, any investment backed 

expectations of broadband providers in 

prior regulatory regimes are minimal. As 

a general matter, property owners 


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cannot expect that existing legal 

requirements regarding their property 

will remain entirely unchanged. 

(Additionally, persons operating in a 

regulated environment develop fewer 

reliance interests in industries subject to 

comprehensive regulation.) The 

Commission has long regulated Internet 

access services, and there is no doubt 

that broadband Internet ‘‘falls 

comfortably within the Commission’s 

jurisdiction.’’ Indeed, with respect to 

broadband Internet access service, 

claims by broadband providers that our 

previous regulatory treatment of 

broadband engendered reliance interests 

runs counter to the plain language of the 

2002 Cable Modem Declaratory Ruling 

and the 2005 Wireline Broadband 

Classification Order, both of which 

contained notices of proposed 

rulemaking seeking comment on the 

retention of Title II-like regulation of 

those services. Also, because we do not 

propose to regulate ex ante broadband 

providers’ ability to set market rates for 

the broadband Internet access services 

they offer, there is no reason to believe 

that our ruling will deprive broadband 

providers of the just compensation that 

is a full answer to any takings claim. 

572. In characterizing our proposed 

rules as a regulatory taking, CenturyLink 

looks to Kaiser Aetna, a case in which 

the government sought to establish 

public access rights to a private marina 

by classifying it as ‘‘navigable waters of 

the United States. As described above, 

we think that analogies to real property 

incursions are inapplicable to the 

provision of broadband Internet access 

services. In any event, the facts of Kaiser 

bear little resemblance to the rights and 

interests implicated by broadband 

networks. Unlike the small, privately 

held marina which was not open to the 

public in Kaiser Aetna, broadband 

Internet access service involves access 

to substantially all Internet endpoints. 

While the marina in Kaiser Aetna 

maintained a small fee-paying 

membership, broadband Internet access 

services are offered directly to the 

public at large, as we recognize in their 

classification as telecommunications 

services. In sum, open Internet rules do 

not so burden broadband provider’s 

control and ownership of their networks 

as to rise to the level of a regulatory 

taking in violation of the Fifth 

Amendment. The economic impact of 

our rules is minimal and our 

classifications do not frustrate any 

significant reliance interests. 

VII. Severability 

573. We consider the actions we take 

today to be separate and severable such 

that in the event any particular action or 

decision is stayed or determined to be 

invalid, we would find that the resulting 

regulatory framework continues to 

fulfill our goal of preserving and 

protecting the open Internet and that it 

shall remain in effect to the fullest 

extent permitted by law. Though 

complementary, each of the rules, 

requirements, classifications, 

definitions, and other provisions that 

we establish in this Report and Order on 

Remand, Declaratory Ruling, and Order 

operate independently to promote the 

virtuous cycle, encourage the 

deployment of broadband on a timely 

basis, and protect the open Internet. 

574. Severability of Open Internet 

Rules from One Another. The open 

Internet rules we adopt today each 

operate independently to protect the 

open Internet, promote the virtuous 

cycle, and encourage the deployment of 

broadband on a timely basis. The 

Verizon court recognized as much by 

holding our initial transparency rule 

severable from the non-discrimination 

and no blocking rules from the 2010 

Open Internet Order. We apply that 

view to today’s transparency rule, as 

well as to the no blocking, no throttling, 

and no paid prioritization rules and the 

no-unreasonable interference/

disadvantage adopted today. While 

today’s rules put in place a suite of open 

Internet protections, we find that each 

of these rules, on its own, serves to 

protect the open Internet. Each rule 

protects against different potential 

harms and thus operates semiindependently from one another. For 

example, the no-blocking rule protects 

consumers’ right to access lawful 

content, applications, and services by 

constraining broadband providers’ 

incentive to block competitors’ content. 

The no throttling rule serves as an 

independent supplement to this 

prohibition on blocking by banning the 

impairment or degradation of lawful 

content that does not reach the level of 

blocking. Should the no blocking rule be 

declared invalid, the no throttling rule 

would still afford consumers and edge 

providers significant protection, and 

thus could independently advance the 

goals of the open Internet, if not as 

comprehensively were the no blocking 

rule still in effect. The same reasoning 

holds true for the ban on paid 

prioritization, which protects against 

particular harms independent of the 

other bright-line rules. Finally, the nounreasonable interference/disadvantage 

standard governs broadband provider 

conduct generally, providing 

independent protections against those 

three harmful practices along with other 

and new practices that could threaten to 

harm Internet openness. Were any of 

these individual rules held invalid, the 

resulting regulations would remain 

valuable tools for protecting the open 

Internet. 

575. Severability of Rules Governing 

Mobile/Fixed Providers. We have also 

made clear today our rules apply to both 

fixed and mobile broadband service. 

These are two different services, and 

thus the application of our rules to 

either service functions independently. 

Accordingly, we find that should 

application of our open Internet rules to 

either fixed or mobile broadband 

Internet access services be held invalid, 

the application of those rules to the 

remaining mobile or fixed services 

would still fulfill our regulatory 

purposes and remain intact. 

VIII. Procedural Matters 

A. Regulatory Flexibility Analysis 

576. As required by the Regulatory 

Flexibility Act (RFA), an Initial 

Regulatory Flexibility Analysis (IRFA) 

was incorporated into the 2014 Open 

Internet NPRM. The Commission sought 

written public comment on the possible 

significant economic impact on small 

entities regarding the proposals 

addressed in the Open Internet NPRM, 

including comments on the IRFA. 

Pursuant to the RFA, a Final Regulatory 

Flexibility Analysis is set forth in the 

Order. 

B. Paperwork Reduction Act of 1995 

Analysis 

577. This document contains new 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. OMB, the general public, and 

other federal agencies are invited to 

comment on the new information 

collection requirements contained in 

this proceeding. In addition, we note 

that pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we previously sought specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. 

578. In this present document, we 

require broadband providers to publicly 

disclose accurate information regarding 

the commercial terms, performance, and 

network management practices of their 

broadband Internet access services 

sufficient for end users to make 

informed choices regarding use of such 

services and for content, application, 


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service, and device providers to 

develop, market, and maintain Internet 

offerings. We have assessed the effects 

of this rule and find that any burden on 

small businesses will be minimal 

because (1) the rule gives broadband 

providers flexibility in how to 

implement the disclosure rule, and (2) 

the rule gives providers adequate time 

to develop cost-effective methods of 

compliance. 

C. Congressional Review Act 

579. The Commission will send a 

copy of this Report and Order to 

Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

D. Data Quality Act 

580. The Commission certifies that it 

has complied with the Office of 

Management and Budget Final 

Information Quality Bulletin for Peer 

Review, 70 FR 2664 (2005), and the Data 

Quality Act, Ex. Public Law 106–554 

(2001), codified at 44 U.S.C. 3516 note, 

with regard to its reliance on influential 

scientific information in the Report and 

Order on Remand, Declaratory Ruling, 

and Order in GN Docket No. 14–28. 

E. Accessible Formats 

581. 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), 202–418–0432 (tty). 

Contact the FCC to request reasonable 

accommodations for filing comments 

(accessible format documents, sign 

language interpreters, CARTS, etc.) by 

email: FCC504@fcc.gov; phone: (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

IX. Ordering Clauses 

582. Accordingly, it is ordered that, 

pursuant to sections 1, 2, 3, 4, 10, 201, 

202, 301, 303, 316, 332, 403, 501, and 

503, 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, 

160, 201, 202, 301, 303, 316, 332, 403, 

501, 503, and 1302, this Report and 

Order on Remand, Declaratory Ruling, 

and Order is adopted. 

583. It is further ordered that parts 1, 

8, and 20 of the Commission’s rules are 

amended as set forth in Appendix A of 

the Order. 

584. It is further ordered that this 

Report and Order on Remand, 

Declaratory Ruling, and Order shall be 

effective June 12, 2015, except that the 

modified information collection 

requirements in paragraphs 164, 166, 

167, 169, 173, 174, 179, 180, and 181 of 

this document are not applicable until 

approved by the Office of Management 

and Budget (OMB). The Federal 

Communications Commission will 

publish a separate document in the 

Federal Register announcing such 

approval and the relevant effective 

date(s). It is our intention in adopting 

the foregoing Declaratory Ruling and 

these rule changes that, if any provision 

of the Declaratory Ruling or the rules, or 

the application thereof to any person or 

circumstance, is held to be unlawful, 

the remaining portions of such 

Declaratory Ruling and the rules not 

deemed unlawful, and the application 

of such Declaratory Ruling and the rules 

to other person or circumstances, shall 

remain in effect to the fullest extent 

permitted by law. 

585. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

Report and Order on Remand, 

Declaratory Ruling, and Order to 

Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

586. It is further ordered, that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Report and Order on Remand, 

Declaratory Ruling, and Order, 

including the Final Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

587. It is further ordered that the 

Mozilla Petition to Recognize Remote 

Delivery Services in Terminating Access 

Networks and Classify Such Services as 

Telecommunications Services Under 

Title II of the Communications Act is 

denied. 

X. Final Regulatory Flexibility Analysis 

588. As required by the Regulatory 

Flexibility Act of 1980 (RFA), as 

amended, Initial Regulatory Flexibility 

Analyses (IRFAs) were incorporated in 

the Notice of Proposed Rule Making 

(2014 Open Internet NPRM) for this 

proceeding. The Commission sought 

written public comment on the 

proposals in the 2014 Open Internet 

NPRM, including comment on the IRFA. 

The Commission received comments on 

the 2014 Open Internet NPRM IRFA, 

which are discussed below. This present 

Final Regulatory Flexibility Analysis 

(FRFA) conforms to the RFA. 

A. Need for, and Objectives of, the 

Proposed Rules 

589. In its remand of the 

Commission’s Open Internet Order, the 

D.C. Circuit affirmed the underlying 

basis for the Commission’s open 

Internet rules, holding that ‘‘the 

Commission [had] more than adequately 

supported and explained its conclusion 

that edge provider innovation leads to 

the expansion and improvement of 

broadband infrastructure.’’ The court 

also found ‘‘reasonable and grounded in 

substantial evidence’’ the Commission’s 

finding that Internet openness fosters 

the edge provider innovation that drives 

the virtuous cycle. Open Internet rules 

benefit investors, innovators, and end 

users by providing more certainty to 

each regarding broadband providers’ 

behavior, and helping to ensure the 

market is conducive to optimal use of 

the Internet. Further, openness 

promotes the Internet’s ability to act as 

a platform for speech and civic 

engagement, and can help close the 

digital divide by facilitating the 

development of diverse content, 

applications, and services. The record 

on remand convinces us that broadband 

providers continue to have the 

incentives and ability to engage in 

practices that pose a threat to Internet 

openness, and as such, rules to protect 

the open nature of the Internet remain 

necessary. 

590. The Commission’s historical 

open Internet policies and rules have 

blunted broadband providers’ incentives 

to engage in behavior harmful to the 

open Internet. Commenters who argue 

that rules are not necessary overlook the 

role that the Commission’s rules and 

policies have played in fostering that 

result. Without rules in place to protect 

the open Internet, the overwhelming 

incentives broadband providers have to 

act in ways that are harmful to 

investment and innovation threaten 

both broadband networks and edge 

content. Accordingly, in the Order, we 

set a clear scope for and subsequently 

adopt a number of rules to address such 

harmful conduct. 

591. First, we note that despite traffic 

exchange’s inclusion in the definition 

and classification of broadband Internet 

access service, we do not apply the 

Commission’s conduct-based rules to 

traffic exchange today. Instead, we 

utilize the regulatory backstop of 

sections 201 and 202, as well as related 

enforcement provisions, to provide 

oversight over traffic exchange 

arrangements between a broadband 

Internet access service provider and 

other networks. Our definition of 

broadband Internet access service 


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includes services ‘‘by wire or radio,’’ 

and thus the open Internet rules we 

adopt apply to both fixed and mobile 

broadband Internet access services. The 

record demonstrates the pressing need 

to apply open Internet rules to fixed and 

mobile broadband Internet access 

services alike, and as such, the 

Commission’s prior justifications for 

treating mobile and fixed services 

differently under the rules are no longer 

relevant. 

592. We adopt a bright-line rule 

prohibiting broadband providers from 

blocking lawful content, applications, 

services, or non-harmful devices. The 

no-blocking rule applies 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. Further, the 

no-blocking rule only applies to 

transmissions of lawful content and 

does not prevent or restrict a broadband 

provider from refusing to transmit 

unlawful material, such as child 

pornography or copyright-infringing 

materials. We believe that this approach 

will allow broadband providers to honor 

their service commitments to their 

subscribers without requiring a 

specified level of service to those 

subscribers or edge providers under the 

no-blocking rule. We further believe that 

the separate no-throttling rule provides 

appropriate protections against harmful 

conduct that degrades traffic but does 

not constitute outright blocking. 

593. We also adopt a separate brightline rule prohibiting broadband 

providers from impairing or degrading 

lawful Internet traffic on the basis of 

content, application, service, or use of a 

non-harmful device. While certain 

broadband provider conduct may result 

in degradation of an end user’s Internet 

experience that is tantamount to 

blocking, we believe that this conduct 

requires delineation in an explicit rule 

rather than through commentary as part 

of the no-blocking rule. We interpret 

throttling to mean any conduct by a 

broadband Internet access service 

provider that impairs, degrades, slows 

down, or renders effectively unusable 

particular content, services, 

applications, or devices, which is not 

reasonable network management. We 

find this prohibition to be as necessary 

as a rule prohibiting blocking. Without 

an equally strong no-throttling rule, 

parties note that the no-blocking rule 

will not be as effective because 

broadband providers might otherwise be 

able to engage in conduct that harms the 

open Internet but falls short of the 

outright blocking standard. 

594. Under our bright-line rule 

banning paid prioritization, the 

Commission will treat all paid 

prioritization as illegal under our rules 

except when, in rare circumstances, a 

broadband provider can convincingly 

show that its practice would 

affirmatively benefit the open Internet. 

Broadband providers may seek a waiver 

of this rule against paid prioritization, 

and we provide guidance to make clear 

the very limited circumstances in which 

the Commission would be willing to 

allow paid prioritization. In order to 

justify waiver, a party would need to 

demonstrate that a practice would 

provide some significant public interest 

benefit and would not harm the open 

nature of the Internet. 

595. In addition to these three brightline rules, we also set forth a nounreasonable interference/disadvantage 

standard, under which the Commission 

can prohibit practices that unreasonably 

interfere with or unreasonably 

disadvantage consumers or edge 

providers, thus causing harm to the 

open Internet. This no-unreasonable 

interference/disadvantage standard will 

operate on a case-by-case basis and is 

designed to evaluate other broadband 

provider policies or practices—not 

covered by the bright-line rules— and 

prohibit those that could harm the open 

Internet. Under this rule, 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. 

Reasonable network management shall 

not be considered a violation of this 

rule. This standard importantly allows 

us to prohibit practices that harm 

Internet openness, while still permitting 

innovative practices and creations that 

promote the virtuous cycle. (The 

Verizon court specifically touted the 

virtuous cycle as a worthy goal and 

within our authority.) 

596. We note that the no-blocking, nothrottling, and no-unreasonable 

interference/disadvantage standard are 

all subject to reasonable network 

management. This network management 

exception is critical to allow broadband 

providers to optimize overall network 

performance and maintain a consistent 

quality experience for consumers. This 

exception does not apply to the paid 

prioritization rule because unlike 

conduct implicating the no-blocking, 

no-throttling, or no-unreasonable 

interference/disadvantage standard, 

paid prioritization is not a network 

management practice. We believe that 

this approach allows broadband 

providers to optimize overall network 

performance and maintain a consistent 

quality experience for consumers while 

carrying a variety of traffic over their 

networks. 

597. In addition, we adopt our 

tentative conclusion in the 2014 Open 

Internet NPRM, that the Commission 

should not apply its conduct-based 

rules to services offered by broadband 

providers that share capacity with 

broadband Internet access service over 

providers’ last-mile facilities, while 

closely monitoring the development of 

these services to ensure that broadband 

providers are not circumventing the 

open Internet rules. While the 2010 

Open Internet Order and the 2014 Open 

Internet NPRM used the term 

‘‘specialized services’’ to refer to these 

types of services, the term ‘‘non-BIAS 

data services’’ is a more accurate 

description for this class of services. 

These services may generally share the 

following characteristics: First, these 

services are not used to reach large parts 

of the Internet. Second, these services 

are not a generic platform—but rather a 

specific ‘‘application level’’ service. 

Finally, these services use some form of 

network management to isolate network 

capacity from broadband Internet access 

services: Physically, logically, 

statistically, or otherwise. 

598. We also adopt enhancements to 

the existing transparency rule, which 

covers both content and format of 

disclosures by providers of broadband 

Internet access services. As the 

Commission has previously noted, 

disclosure requirements are among the 

least intrusive and most effective 

regulatory measures at its disposal. The 

enhanced transparency requirements 

adopted in the present Order serve the 

same purposes as those required under 

the 2010 Order: Providing critical 

information to serve end-user 

consumers, edge providers of broadband 

products and services, and the Internet 

community. Our enhancements to the 

existing transparency rule will 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 will similarly provide 

edge providers with the information 

necessary to develop new content, 

applications, services, and devices that 

promote the virtuous cycle of 

investment and innovation. 

599. We anticipate that many disputes 

that will arise can and should be 

resolved by the parties without 

Commission involvement. We 


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encourage parties to resolve disputes 

through informal discussions and 

private negotiations, but to the extent 

these methods are not practical, the 

Commission will continue to provide 

backstop mechanisms to address them. 

We continue to allow parties to file 

formal and informal complaints, and we 

will also proactively monitor 

compliance and take strong enforcement 

action against parties who violate the 

open Internet rules. In addition, we 

institute the use of advisory opinions 

similar to those issued by DOJ’s 

Antitrust Division to provide clarity, 

guidance, and predictability concerning 

the open Internet rules. We also create 

an ombudsperson position that will 

serve as a point of contact for open 

Internet issues at the Commission to 

help consumers and edge providers 

direct their inquiries and complaints to 

the appropriate parties. 

600. The legal basis for the Open 

Internet rules we adopt today relies on 

multiple sources of legal authority, 

including section 706, Title II, and Title 

III of the Communications Act. We 

conclude that the best approach to 

achieving our open Internet goals is to 

rely on several, independent, yet 

complementary sources of legal 

authority. Our authority under section 

706 is not mutually exclusive with our 

authority under Titles II and III of the 

Act. Rather, we read our statute to 

provide independent sources of 

authority that work in concert toward 

common ends. Under section 706, the 

Commission has the authority to take 

certain regulatory steps to encourage 

and accelerate the deployment of 

broadband to all Americans. Under Title 

II, the Commission has authority to 

ensure that common carriers do not 

engage in unjust and unreasonable 

practices or preferences. And under 

Title III, the Commission has authority 

to protect the public interest through 

spectrum licensing. Each of these 

sources of authority provides an 

alternative ground to independently 

support our open Internet rules. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

601. In response to the 2014 Open 

Internet NPRM, five entities filed 

comments, reply comments, and/or ex 

parte letters that specifically addressed 

the IRFA to some degree: ADTRAN, the 

American Cable Association (ACA), The 

National Cable & Telecommunications 

Association (NCTA), NTCA—the Rural 

Broadband Association (NTCA), and the 

Wireless Internet Service Providers 

Association (WISPA). Some of these, as 

well as other entities filed comments or 

ex parte letters that more generally 

considered the small business impact of 

our proposals. The Office of Advocacy 

of the Small Business Administration 

(SBA) also filed a letter encouraging the 

FCC to use the RFA to reach out to small 

businesses in the course of the 

proceeding. The SBA particularly 

encouraged the Commission to 

‘‘exercise appropriate caution in 

tailoring its final rules to mitigate any 

anticompetitive pressure on small 

broadband providers as well.’’ We 

considered the proposals and concerns 

described by the various commenters, 

including the SBA, when composing the 

Order and accompanying rules. 

602. Some commenters expressed 

concern that in the IRFA, we had not 

adequately considered the varying sizes 

of broadband providers and the effect of 

our proposals on smaller entities. 

Contrary to these concerns, when 

making the determination reflected in 

the Order, we carefully considered the 

impact of our actions on small entities. 

The record also reflects small entities’ 

concern that the rules proposed in the 

2014 Open Internet NPRM did not 

include sufficient protection for small 

edge providers and broadband 

providers. Thus, the rules adopted in 

the Order reflect a careful consideration 

of the impact that our rules will have 

both on small edge providers and on 

small broadband providers. The record 

also reflects the concerns of some 

commenters that enhanced transparency 

requirements will be particularly 

burdensome for smaller providers. 

However, in the 2014 Open Internet 

NPRM IRFA, we specifically sought 

comment on whether there are ways the 

Commission or industry associations 

could reduce burdens on broadband 

providers in complying with the 

proposed enhanced transparency rule 

through the use of a voluntary industry 

standardized glossary, or through the 

creation of a dashboard that permits 

easy comparison of the policies, 

procedures, and prices of various 

broadband providers throughout the 

country. 

603. NCTA and others also state that 

the IRFA was insufficiently specific 

considering the obligations and impact 

of the classification of broadband 

Internet access service as a Title II 

service. We disagree with this 

contention as well. We believe that the 

IRFA was adequate and that the 

opportunity for parties, including small 

entities, to comment in a publicly 

accessible docket on the proposals 

contained within the 2014 Open 

Internet NPRM was sufficient. The 

opportunity for comments, replies, and 

ex parte presentations more than 

adequately shaped the universe of 

potential obligations that could stem 

from our final rules. This was reflected 

in the overwhelming outpouring of 

comment on the proposals contained in 

the NPRM: Including many comments 

by and on behalf of small entities. The 

IRFA described that the 2014 Open 

Internet NPRM sought comment on the 

best source of authority for protecting 

Internet openness, whether section 706, 

Title II of the Communications Act of 

1934, as amended, and/or other sources 

of legal authority such as Title III of the 

Communications Act for wireless 

services. 

C. Description and Estimate of the 

Number of Small Entities To Which the 

Rules Would Apply 

604. 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 SBA. 

1. Total Small Entities 

605. Our proposed action, if 

implemented, may, over time, affect 

small entities that are not easily 

categorized at present. We therefore 

describe here, at the outset, three 

comprehensive, statutory small entity 

size standards. First, nationwide, there 

are a total of approximately 28.2 million 

small businesses, according to the SBA. 

In addition, a ‘‘small organization’’ is 

generally ‘‘any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field.’’ Nationwide, as of 2007, there 

were approximately 1,621,315 small 

organizations. Finally, the term ‘‘small 

governmental jurisdiction’’ is defined 

generally as ‘‘governments of cities, 

towns, townships, villages, school 

districts, or special districts, with a 

population of less than fifty thousand.’’ 

Census Bureau data for 2007 indicate 

that there were 89,476 local 

governmental jurisdictions in the 

United States. We estimate that, of this 

total, as many as 88,761 entities may 

qualify as ‘‘small governmental 

jurisdictions.’’ Thus, we estimate that 


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most governmental jurisdictions are 

small. 

2. Broadband Internet Access Service 

Providers 

606. The rules adopted in the Order 

apply to broadband Internet access 

service providers. The Economic Census 

places these firms, whose services might 

include Voice over Internet Protocol 

(VoIP), in either of two categories, 

depending on whether the service is 

provided over the provider’s own 

telecommunications facilities (e.g., cable 

and DSL ISPs), or over client-supplied 

telecommunications connections (e.g., 

dial-up ISPs). The former are within the 

category of Wired Telecommunications 

Carriers, which has an SBA small 

business size standard of 1,500 or fewer 

employees. These are also labeled 

‘‘broadband.’’ The latter are within the 

category of All Other 

Telecommunications, which has a size 

standard of annual receipts of $25 

million or less. These are labeled nonbroadband. According to Census Bureau 

data for 2007, there were 3,188 firms in 

the first category, total, that operated for 

the entire year. Of this total, 3144 firms 

had employment of 999 or fewer 

employees, and 44 firms had 

employment of 1000 employees or 

more. For the second category, the data 

show that 1,274 firms operated for the 

entire year. Of those, 1,252 had annual 

receipts below $25 million per year. 

Consequently, we estimate that the 

majority of broadband Internet access 

service provider firms are small entities. 

607. The broadband Internet access 

service provider industry has changed 

since this definition was introduced in 

2007. The data cited above may 

therefore include entities that no longer 

provide broadband Internet access 

service, and may exclude entities that 

now provide such service. To ensure 

that this FRFA describes the universe of 

small entities that our action might 

affect, we discuss in turn several 

different types of entities that might be 

providing broadband Internet access 

service. We note that, although we have 

no specific information on the number 

of small entities that provide broadband 

Internet access service over unlicensed 

spectrum, we include these entities in 

our Final Regulatory Flexibility 

Analysis. 

3. Wireline Providers 

608. Incumbent Local Exchange 

Carriers (Incumbent LECs). Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The closest 

applicable size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 1,307 

carriers reported that they were 

incumbent local exchange service 

providers. Of these 1,307 carriers, an 

estimated 1,006 have 1,500 or fewer 

employees and 301 have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by rules adopted pursuant to 

the Order. 

609. Competitive Local Exchange 

Carriers (Competitive LECs), 

Competitive Access Providers (CAPs), 

Shared-Tenant Service Providers, and 

Other Local Service Providers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for these service 

providers. The appropriate size standard 

under SBA rules is for the category 

Wired Telecommunications Carriers. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. According to Commission 

data, 1,442 carriers reported that they 

were engaged in the provision of either 

competitive local exchange services or 

competitive access provider services. Of 

these 1,442 carriers, an estimated 1,256 

have 1,500 or fewer employees and 186 

have more than 1,500 employees. In 

addition, 17 carriers have reported that 

they are Shared-Tenant Service 

Providers, and all 17 are estimated to 

have 1,500 or fewer employees. In 

addition, 72 carriers have reported that 

they are Other Local Service Providers. 

Of the 72, seventy have 1,500 or fewer 

employees and two have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

Shared-Tenant Service Providers, and 

other local service providers are small 

entities that may be affected by rules 

adopted pursuant to the Order. 

610. We have included small 

incumbent LECs in this present RFA 

analysis. As noted above, a ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ The 

SBA’s Office of Advocacy contends that, 

for RFA purposes, small incumbent 

LECs are not dominant in their field of 

operation because any such dominance 

is not ‘‘national’’ in scope. We have 

therefore included small incumbent 

LECs in this RFA analysis, although we 

emphasize that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

611. Interexchange Carriers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for providers of 

interexchange services. The appropriate 

size standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 359 carriers have 

reported that they are engaged in the 

provision of interexchange service. Of 

these, an estimated 317 have 1,500 or 

fewer employees and 42 have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of IXCs are small entities that may be 

affected by rules adopted pursuant to 

the Order. 

612. Operator Service Providers 

(OSPs). Neither the Commission nor the 

SBA has developed a small business 

size standard specifically for operator 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 33 carriers have 

reported that they are engaged in the 

provision of operator services. Of these, 

an estimated 31 have 1,500 or fewer 

employees and two have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of OSPs are small entities that may be 

affected by rules adopted pursuant to 

the Order. 

4. Wireless Providers—Fixed and 

Mobile 

613. The broadband Internet access 

service provider category covered by 

this Order 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 service, 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 


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events, unjust enrichment issues are 

implicated. 

604. Wireless Telecommunications 

Carriers (except Satellite). Since 2007, 

the Census Bureau has placed wireless 

firms within this new, broad, economic 

census category. Under the present and 

prior categories, the SBA has deemed a 

wireless business to be small if it has 

1,500 or fewer employees. For the 

category of Wireless 

Telecommunications Carriers (except 

Satellite), census data for 2007 show 

that there were 1,383 firms that operated 

for the entire year. Of this total, 1,368 

firms had employment of 999 or fewer 

employees and 15 had employment of 

1000 employees or more. Since all firms 

with fewer than 1,500 employees are 

considered small, given the total 

employment in the sector, we estimate 

that the vast majority of wireless firms 

are small. 

605. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses. The 

Commission defined ‘‘small business’’ 

for the wireless communications 

services (WCS) auction as an entity with 

average gross revenues of $40 million 

for each of the three preceding years, 

and a ‘‘very small business’’ as an entity 

with average gross revenues of $15 

million for each of the three preceding 

years. The SBA has approved these 

definitions. 

606. 1670–1675 MHz Services. This 

service can be used for fixed and mobile 

uses, except aeronautical mobile. An 

auction for one license in the 1670–1675 

MHz band was conducted in 2003. One 

license was awarded. The winning 

bidder was not a small entity. 

607. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services, and 

specialized mobile radio telephony 

carriers. As noted, the SBA has 

developed a small business size 

standard for Wireless 

Telecommunications Carriers (except 

Satellite). Under the SBA small business 

size standard, a business is small if it 

has 1,500 or fewer employees. 

According to Commission data, 413 

carriers reported that they were engaged 

in wireless telephony. Of these, an 

estimated 261 have 1,500 or fewer 

employees and 152 have more than 

1,500 employees. Therefore, a little less 

than one third of these entities can be 

considered small. 

608. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission initially defined a ‘‘small 

business’’ for C– and F–Block licenses 

as an entity that has average gross 

revenues of $40 million or less in the 

three previous calendar years. For F– 

Block licenses, an additional small 

business size standard for ‘‘very small 

business’’ was added and is defined as 

an entity that, together with its affiliates, 

has average gross revenues of not more 

than $15 million for the preceding three 

calendar years. These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA. No small 

businesses within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that claimed small business status in the 

first two C–Block auctions. A total of 93 

bidders that claimed small business 

status won approximately 40 percent of 

the 1,479 licenses in the first auction for 

the D, E, and F Blocks. On April 15, 

1999, the Commission completed the 

reauction of 347 C–, D–, E–, and F– 

Block licenses in Auction No. 22. Of the 

57 winning bidders in that auction, 48 

claimed small business status and won 

277 licenses. 

609. On January 26, 2001, the 

Commission completed the auction of 

422 C and F Block Broadband PCS 

licenses in Auction No. 35. Of the 35 

winning bidders in that auction, 29 

claimed small business status. 

Subsequent events concerning Auction 

35, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. On February 15, 2005, the 

Commission completed an auction of 

242 C–, D–, E–, and F–Block licenses in 

Auction No. 58. Of the 24 winning 

bidders in that auction, 16 claimed 

small business status and won 156 

licenses. On May 21, 2007, the 

Commission completed an auction of 33 

licenses in the A, C, and F Blocks in 

Auction No. 71. Of the 12 winning 

bidders in that auction, five claimed 

small business status and won 18 

licenses. On August 20, 2008, the 

Commission completed the auction of 

20 C–, D–, E–, and F–Block Broadband 

PCS licenses in Auction No. 78. Of the 

eight winning bidders for Broadband 

PCS licenses in that auction, six claimed 

small business status and won 14 

licenses. 

610. Specialized Mobile Radio 

Licenses. The Commission awards 

‘‘small entity’’ bidding credits in 

auctions for Specialized Mobile Radio 

(SMR) geographic area licenses in the 

800 MHz and 900 MHz bands to firms 

that had revenues of no more than $15 

million in each of the three previous 

calendar years. The Commission awards 

‘‘very small entity’’ bidding credits to 

firms that had revenues of no more than 

$3 million in each of the three previous 

calendar years. The SBA has approved 

these small business size standards for 

the 900 MHz Service. The Commission 

has held auctions for geographic area 

licenses in the 800 MHz and 900 MHz 

bands. The 900 MHz SMR auction began 

on December 5, 1995, and closed on 

April 15, 1996. Sixty bidders claiming 

that they qualified as small businesses 

under the $15 million size standard won 

263 geographic area licenses in the 900 

MHz SMR band. The 800 MHz SMR 

auction for the upper 200 channels 

began on October 28, 1997, and was 

completed on December 8, 1997. Ten 

bidders claiming that they qualified as 

small businesses under the $15 million 

size standard won 38 geographic area 

licenses for the upper 200 channels in 

the 800 MHz SMR band. A second 

auction for the 800 MHz band was held 

on January 10, 2002 and closed on 

January 17, 2002 and included 23 BEA 

licenses. One bidder claiming small 

business status won five licenses. 

611. The auction of the 1,053 800 

MHz SMR geographic area licenses for 

the General Category channels began on 

August 16, 2000, and was completed on 

September 1, 2000. Eleven bidders won 

108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band and qualified as small 

businesses under the $15 million size 

standard. In an auction completed on 

December 5, 2000, a total of 2,800 

Economic Area licenses in the lower 80 

channels of the 800 MHz SMR service 

were awarded. Of the 22 winning 

bidders, 19 claimed small business 

status and won 129 licenses. Thus, 

combining all four auctions, 41 winning 

bidders for geographic licenses in the 

800 MHz SMR band claimed status as 

small businesses. 

612. In addition, there are numerous 

incumbent site-by-site SMR licenses and 

licensees with extended implementation 

authorizations in the 800 and 900 MHz 

bands. We do not know how many firms 

provide 800 MHz or 900 MHz 

geographic area SMR service pursuant 

to extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $15 million. One firm has 

over $15 million in revenues. In 

addition, we do not know how many of 

these firms have 1,500 or fewer 

employees, which is the SBAdetermined size standard. We assume, 

for purposes of this analysis, that all of 

the remaining extended implementation 


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authorizations are held by small 

entities, as defined by the SBA. 

613. Lower 700 MHz Band Licenses. 

The Commission previously adopted 

criteria for defining three groups of 

small businesses for purposes of 

determining their eligibility for special 

provisions such as bidding credits. 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. A ‘‘very small business’’ is 

defined 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. Additionally, the lower 700 

MHz Service had a third category of 

small business status for Metropolitan/ 

Rural Service Area (MSA/RSA) 

licenses—‘‘entrepreneur’’—which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years. The SBA approved these 

small size standards. An auction of 740 

licenses (one license in each of the 734 

MSAs/RSAs and one license in each of 

the six Economic Area Groupings 

(EAGs)) commenced on August 27, 

2002, and closed on September 18, 

2002. Of the 740 licenses available for 

auction, 484 licenses were won by 102 

winning bidders. Seventy-two of the 

winning bidders claimed small 

business, very small business or 

entrepreneur status and won a total of 

329 licenses. A second auction 

commenced on May 28, 2003, closed on 

June 13, 2003, and included 256 

licenses: 5 EAG licenses and 476 

Cellular Market Area licenses. 

Seventeen winning bidders claimed 

small or very small business status and 

won 60 licenses, and nine winning 

bidders claimed entrepreneur status and 

won 154 licenses. On July 26, 2005, the 

Commission completed an auction of 5 

licenses in the Lower 700 MHz band 

(Auction No. 60). There were three 

winning bidders for five licenses. All 

three winning bidders claimed small 

business status. 

614. In 2007, the Commission 

reexamined its rules governing the 700 

MHz band in the 700 MHz Second 

Report and Order. An auction of 700 

MHz licenses commenced January 24, 

2008 and closed on March 18, 2008, 

which included, 176 Economic Area 

licenses in the A Block, 734 Cellular 

Market Area licenses in the B Block, and 

176 EA licenses in the E Block. Twenty 

winning bidders, claiming small 

business status (those with attributable 

average annual gross revenues that 

exceed $15 million and do not exceed 

$40 million for the preceding three 

years) won 49 licenses. Thirty three 

winning bidders claiming very small 

business status (those with attributable 

average annual gross revenues that do 

not exceed $15 million for the preceding 

three years) won 325 licenses. 

615. Upper 700 MHz Band Licenses. 

In the 700 MHz Second Report and 

Order, the Commission revised its rules 

regarding Upper 700 MHz licenses. On 

January 24, 2008, the Commission 

commenced Auction 73 in which 

several licenses in the Upper 700 MHz 

band were available for licensing: 12 

Regional Economic Area Grouping 

licenses in the C Block, and one 

nationwide license in the D Block. The 

auction concluded on March 18, 2008, 

with 3 winning bidders claiming very 

small business status (those with 

attributable average annual gross 

revenues that do not exceed $15 million 

for the preceding three years) and 

winning five licenses. 

616. 700 MHz Guard Band Licensees. 

In 2000, in the 700 MHz Guard Band 

Order, the Commission adopted size 

standards for ‘‘small businesses’’ and 

‘‘very small businesses’’ for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. A small business 

in this service is an entity that, together 

with its affiliates and controlling 

principals, has average gross revenues 

not exceeding $40 million for the 

preceding three years. Additionally, a 

very small business is 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. 

SBA approval of these definitions is not 

required. An auction of 52 Major 

Economic Area licenses commenced on 

September 6, 2000, and closed on 

September 21, 2000. Of the 104 licenses 

auctioned, 96 licenses were sold to nine 

bidders. Five of these bidders were 

small businesses that won a total of 26 

licenses. A second auction of 700 MHz 

Guard Band licenses commenced on 

February 13, 2001, and closed on 

February 21, 2001. All eight of the 

licenses auctioned were sold to three 

bidders. One of these bidders was a 

small business that won a total of two 

licenses. 

617. Air-Ground Radiotelephone 

Service. The Commission has previously 

used the SBA’s small business size 

standard applicable to Wireless 

Telecommunications Carriers (except 

Satellite), i.e., an entity employing no 

more than 1,500 persons. There are 

approximately 100 licensees in the AirGround Radiotelephone Service, and 

under that definition, we estimate that 

almost all of them qualify as small 

entities under the SBA definition. For 

purposes of assigning Air-Ground 

Radiotelephone Service licenses 

through competitive bidding, the 

Commission has defined ‘‘small 

business’’ as an entity that, together 

with controlling interests and affiliates, 

has average annual gross revenues for 

the preceding three years not exceeding 

$40 million. A ‘‘very small business’’ is 

defined as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not exceeding $15 

million. These definitions were 

approved by the SBA. In May 2006, the 

Commission completed an auction of 

nationwide commercial Air-Ground 

Radiotelephone Service licenses in the 

800 MHz band (Auction No. 65). On 

June 2, 2006, the auction closed with 

two winning bidders winning two AirGround Radiotelephone Services 

licenses. Neither of the winning bidders 

claimed small business status. 

618. AWS Services (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)). For the AWS–1 bands, the 

Commission has 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. For AWS–2 and AWS–3, 

although we do not know for certain 

which entities are likely to apply for 

these frequencies, we note that the 

AWS–1 bands are comparable to those 

used for cellular service and personal 

communications service. The 

Commission has not yet adopted size 

standards for the AWS–2 or AWS–3 

bands but proposes to treat both AWS– 

2 and AWS–3 similarly to broadband 

PCS service and AWS–1 service due to 

the comparable capital requirements 

and other factors, such as issues 

involved in relocating incumbents and 

developing markets, technologies, and 

services. 

619. 3650–3700 MHz band. In March 

2005, the Commission released a Report 

and Order and Memorandum Opinion 

and Order that provides for nationwide, 

non-exclusive licensing of terrestrial 

operations, utilizing contention-based 

technologies, in the 3650 MHz band 

(i.e., 3650–3700 MHz). As of April 2010, 

more than 1270 licenses have been 

granted and more than 7433 sites have 

been registered. The Commission has 

not developed a definition of small 


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entities applicable to 3650–3700 MHz 

band nationwide, non-exclusive 

licensees. However, we estimate that the 

majority of these licensees are Internet 

Access Service Providers (ISPs) and that 

most of those licensees are small 

businesses. 

620. Fixed Microwave Services. 

Microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. They 

also include the Local Multipoint 

Distribution Service (LMDS), the Digital 

Electronic Message Service (DEMS), and 

the 24 GHz Service, where licensees can 

choose between common carrier and 

non-common carrier status. At present, 

there are approximately 36,708 common 

carrier fixed licensees and 59,291 

private operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services. There are 

approximately 135 LMDS licensees, 

three DEMS licensees, and three 24 GHz 

licensees. The Commission has not yet 

defined a small business with respect to 

microwave services. For purposes of the 

FRFA, we will use the SBA’s definition 

applicable to Wireless 

Telecommunications Carriers (except 

satellite)—i.e., an entity with no more 

than 1,500 persons. Under the present 

and prior categories, the SBA has 

deemed a wireless business to be small 

if it has 1,500 or fewer employees. The 

Commission does not have data 

specifying the number of these licensees 

that have more than 1,500 employees, 

and thus is unable at this time to 

estimate with greater precision the 

number of fixed microwave service 

licensees that would qualify as small 

business concerns under the SBA’s 

small business size standard. 

Consequently, the Commission 

estimates that there are up to 36,708 

common carrier fixed licensees and up 

to 59,291 private operational-fixed 

licensees and broadcast auxiliary radio 

licensees in the microwave services that 

may be small and may be affected by the 

rules and policies adopted herein. We 

note, however, that the common carrier 

microwave fixed licensee category 

includes some large entities. 

621. 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)). In connection with the 1996 

BRS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of no more than 

$40 million in the previous three 

calendar years. The BRS auctions 

resulted in 67 successful bidders 

obtaining licensing opportunities for 

493 Basic Trading Areas (BTAs). Of the 

67 auction winners, 61 met the 

definition of a small business. BRS also 

includes licensees of stations authorized 

prior to the auction. At this time, we 

estimate that of the 61 small business 

BRS auction winners, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

392 incumbent BRS licensees that are 

considered small entities. After adding 

the number of small business auction 

licensees to the number of incumbent 

licensees not already counted, we find 

that there are currently approximately 

440 BRS licensees that are defined as 

small businesses under either the SBA 

or the Commission’s rules. 

622. In 2009, the Commission 

conducted Auction 86, the sale of 78 

licenses in the BRS areas. The 

Commission offered three levels of 

bidding credits: (i) A bidder with 

attributed average annual gross revenues 

that exceed $15 million and do not 

exceed $40 million for the preceding 

three years (small business) received a 

15 percent discount on its winning bid; 

(ii) a bidder with attributed average 

annual gross revenues that exceed $3 

million and do not exceed $15 million 

for the preceding three years (very small 

business) received a 25 percent discount 

on its winning bid; and (iii) a bidder 

with attributed average annual gross 

revenues that do not exceed $3 million 

for the preceding three years 

(entrepreneur) received a 35 percent 

discount on its winning bid. Auction 86 

concluded in 2009 with the sale of 61 

licenses. Of the ten winning bidders, 

two bidders that claimed small business 

status won 4 licenses; one bidder that 

claimed very small business status won 

three licenses; and two bidders that 

claimed entrepreneur status won six 

licenses. 

623. In addition, the SBA’s Cable 

Television Distribution Services small 

business size standard is applicable to 

EBS. There are presently 2,436 EBS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions are included in 

this analysis as small entities. Thus, we 

estimate that at least 2,336 licensees are 

small businesses. Since 2007, Cable 

Television Distribution Services have 

been defined within the broad economic 

census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises 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 telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ The SBA has developed 

a small business size standard for this 

category, which is: All such firms 

having 1,500 or fewer employees. To 

gauge small business prevalence for 

these cable services we must, however, 

use the most current census data that 

are based on the previous category of 

Cable and Other Program Distribution 

and its associated size standard; that 

size standard was: All such firms having 

$13.5 million or less in annual receipts. 

According to Census Bureau data for 

2007, there were a total of 996 firms in 

this category that operated for the entire 

year. Of this total, 948 firms had annual 

receipts of under $10 million, and 48 

firms had receipts of $10 million or 

more but less than $25 million. Thus, 

the majority of these firms can be 

considered small. 

5. Satellite Service Providers 

624. Satellite Telecommunications 

Providers. Two economic census 

categories address the satellite industry. 

The first category has a small business 

size standard of $30 million or less in 

average annual receipts, under SBA 

rules. The second has a size standard of 

$30 million or less in annual receipts. 

625. The category of Satellite 

Telecommunications ‘‘comprises 

establishments 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.’’ For this category, 

Census Bureau data for 2007 show that 

there were a total of 570 firms that 

operated for the entire year. Of this 

total, 530 firms had annual receipts of 

under $30 million, and 40 firms had 

receipts of over $30 million. 

Consequently, we estimate that the 

majority of Satellite 

Telecommunications firms are small 

entities that might be affected by our 

action. 

626. The second category of Other 

Telecommunications comprises, inter 

alia, ‘‘establishments primarily engaged 

in providing specialized 


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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.’’ For this category, 

Census Bureau data for 2007 show that 

there were a total of 1,274 firms that 

operated for the entire year. Of this 

total, 1,252 had annual receipts below 

$25 million per year. Consequently, we 

estimate that the majority of All Other 

Telecommunications firms are small 

entities that might be affected by our 

action. 

6. Cable Service Providers 

627. Because section 706 requires us 

to monitor the deployment of broadband 

using any technology, we anticipate that 

some broadband service providers may 

not provide telephone service. 

Accordingly, we describe below other 

types of firms that may provide 

broadband services, including cable 

companies, MDS providers, and 

utilities, among others. 

628. Cable and Other Program 

Distributors. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises 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 telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ The SBA has developed 

a small business size standard for this 

category, which is: all such firms having 

1,500 or fewer employees. To gauge 

small business prevalence for these 

cable services we must, however, use 

current census data that are based on 

the previous category of Cable and 

Other Program Distribution and its 

associated size standard; that size 

standard was: All such firms having 

$13.5 million or less in annual receipts. 

According to Census Bureau data for 

2007, there were a total of 2,048 firms 

in this category that operated for the 

entire year. Of this total, 1,393 firms had 

annual receipts of under $10 million, 

and 655 firms had receipts of $10 

million or more. Thus, the majority of 

these firms can be considered small. 

629. Cable Companies and Systems. 

The Commission has also developed its 

own small business size standards, 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. 

Industry data shows that there were 

1,141 cable companies at the end of 

June 2012. Of this total, all but ten cable 

operators nationwide are small under 

this size standard. In addition, under 

the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. Current 

Commission records show 4,945 cable 

systems nationwide. Of this total, 4,380 

cable systems have less than 20,000 

subscribers, and 565 systems have 

20,000 or more subscribers, based on the 

same records. Thus, under this 

standard, we estimate that most cable 

systems are small entities. 

630. Cable System Operators. The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1 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.’’ The 

Commission has determined that an 

operator serving fewer than 677,000 

subscribers shall be deemed a small 

operator, if its annual revenues, when 

combined with the total annual 

revenues of all its affiliates, do not 

exceed $250 million in the aggregate. 

Based on available data, we find that all 

but ten incumbent cable operators are 

small entities under this size standard. 

We note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million, 

and therefore we are unable to estimate 

more accurately the number of cable 

system operators that would qualify as 

small under this size standard. 

7. Electric Power Generators, 

Transmitters, and Distributors 

631. Electric Power Generators, 

Transmitters, and Distributors. The 

Census Bureau defines an industry 

group 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.’’ The SBA has developed a 

small business size standard for firms in 

this category: ‘‘A firm is small if, 

including its affiliates, it is primarily 

engaged in the generation, transmission, 

and/or distribution of electric energy for 

sale and its total electric output for the 

preceding fiscal year did not exceed 4 

million megawatt hours.’’ Census 

Bureau data for 2007 show that there 

were 1,174 firms that operated for the 

entire year in this category. Of these 

firms, 50 had 1,000 employees or more, 

and 1,124 had fewer than 1,000 

employees. Based on this data, a 

majority of these firms can be 

considered small. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

632. The Order clarifies and adopts 

certain incremental enhancements to 

the existing transparency rule, which 

was adopted in 2010, and will continue 

to require providers of broadband 

Internet access services to ‘‘publicly 

disclose accurate information regarding 

the network management practices, 

performance, and commercial terms of 

its broadband Internet access services 

sufficient for consumers to make 

informed choices regarding use of such 

services and for content, application, 

service, and device providers to 

develop, market, and maintain Internet 

offerings.’’ We summarize below the 

record keeping and reporting obligations 

of the accompanying Order. Additional 

information on each of these 

requirements can be found in the Order. 

633. First, we clarify that all of the 

pieces of information described in 

paragraphs 56 and 98 of the 2010 Open 

Internet Order have been required as 

part of the current transparency rule, 

and we will continue to require the 

information as part of our enhanced 

rule. The only exception is the 

requirement to disclose ‘‘typical 

frequency of congestion,’’ which we no 

longer require since it is superseded by 

more precise disclosures already 

required by the rule, such as actual 

performance. Also, the requirement that 

all disclosures made by a broadband 

provider be accurate includes the need 

to maintain the accuracy of these 

disclosures. 

634. Second, we enhance and 

describe in more specific terms than in 

2010 the information to be provided in 

disclosing commercial terms, network 

performance characteristics, and 

network practices. For example, in 

meeting the existing requirement to 

disclose ‘‘actual performance,’’ 


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providers of broadband Internet access 

services will be required to report 

packet loss, in addition to the already 

required metrics of speed and latency. 

635. Third, we require that providers 

directly notify end users if their 

particular use of a network will trigger 

a network practice, based on a user’s 

demand during more than the period of 

congestion, that is likely to have a 

significant impact on the end user’s use 

of the service. The purpose of such 

notification is to provide the affected 

end users with sufficient information 

and time to consider adjusting their 

usage to avoid application of the 

practice. 

636. Fourth, we establish a voluntary 

safe harbor that providers may use in 

meeting the existing requirement to 

make transparency disclosures in a 

format that meets the needs of end 

users. The safe harbor consists of the 

use of a standalone disclosure targeted 

to end users. Based on concerns raised 

in the record by smaller providers of 

broadband Internet access service, 

however, we do not at this time require 

use of this standalone format, and 

instead have submitted this issue to the 

Consumer Advisory Committee for 

further consideration. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

637. 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 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 small entities. We have considered 

all of these factors subsequent to 

receiving substantive comments from 

the public and potentially affected 

entities. The Commission has 

considered the economic impact on 

small entities, as identified in comments 

filed in response to the 2014 Open 

Internet NPRM and its IRFA, in reaching 

its final conclusions and taking action 

in this proceeding. 

638. We considered, for example, a 

variety of approaches to deal with paid 

prioritization, and we determined that a 

flat ban on paid prioritization has 

advantages over alternative approaches 

identified in the record. We note that 

this approach relieves small edge 

providers, innovators, and consumers of 

the burden of detecting and challenging 

instances of harmful paid prioritization. 

Related to this issue, smaller edge 

providers expressed concern that they 

do not have the resources to fight 

against commercially unreasonable 

practices, which could result in an 

unfair playing field before the 

Commission. Still others argued that the 

standard would permit paid 

prioritization, which could 

disadvantage smaller entities and 

individuals. Given these concerns, we 

declined to adopt our proposed rule to 

prohibit practices that are not 

commercially reasonable. (Based on the 

record before us, we were persuaded 

that adopting a legal standard 

prohibiting commercially unreasonable 

practices is not the most effective or 

appropriate approach for protecting and 

promoting an open Internet.) 

639. With regard to our nounreasonable interference/disadvantage 

standard, we were mindful that vague or 

unclear regulatory requirements could 

stymie rather than encourage 

innovation, and found that the approach 

we adopted provides sufficient certainty 

and guidance to consumers, broadband 

providers, and edge providers— 

particularly smaller entities that might 

lack experience dealing with broadband 

providers—while also allowing parties 

flexibility in developing new services. 

640. We found our existing informal 

complaint rule offers an accessible and 

effective mechanism for parties— 

including consumers and small 

businesses with limited resources—to 

report possible noncompliance with our 

open Internet rules without being 

subject to burdensome evidentiary or 

pleading requirements. Accordingly we 

declined to adopt proposals modifying 

the existing standard. 

641. We also decline to adopt 

arbitration procedures or to mandate 

arbitration for parties to open Internet 

complaint proceedings. Under the rules 

adopted today, parties are still free to 

engage in mediation and outside 

arbitration to settle their open Internet 

disputes, but alternative dispute 

resolution will not be required. We 

noted commenters’ concerns that 

mandatory arbitration, in particular, 

may more frequently benefit the party 

with more resources and more 

understanding of dispute procedure, 

and therefore should not be adopted. 

642. In formulating the enhanced 

disclosure requirements, we crafted 

rules that strike a balance between 

compliance burdens to industry and 

utility for end-user consumers, edge 

providers, and the Internet community. 

We considered several additional 

metrics contemplated in the NPRM, but 

ultimately declined to require their 

disclosure in the Order, concluding that 

the adopted enhancements to 

transparency were sufficient to protect 

consumers. (For example, we do not 

require disclosure of the source of 

congestion due to the difficulty in 

determining the source, and the 

corresponding additional burden in 

requiring that information to be 

disclosed.) We also recognized with 

respect to the nature of disclosures that 

there are differences between fixed and 

mobile broadband networks. 

643. The record reflects the concerns 

of some commenters that enhanced 

transparency requirements will be 

particularly burdensome for smaller 

providers. ACA, for example, suggests 

that smaller providers be exempted from 

the provision of such disclosures. ACA 

states that its member companies are 

complying with the current 

transparency requirements, which 

‘‘strike the right balance between edge 

provider and consumer needs for 

pertinent information and the need to 

provide ISPs with some flexibility in 

how they disclose pertinent 

information.’’ We believe that the 

enhanced requirements adopted herein 

are incremental in nature, but 

nevertheless necessary to provide enduser consumers, edge providers, and the 

Internet community with better 

information about the critical network 

performance metrics, practices, and 

commercial terms that have a direct 

impact on their use of the network. 

Customers of small broadband providers 

have an equal need for this information. 

However, out of an abundance of 

caution, we grant a temporary 

exemption for small providers, with the 

potential for that exemption to become 

permanent. We note that all providers of 

broadband Internet access service, 

including small providers, remain 

subject to the existing transparency rule 

adopted in 2010. 

644. To ensure we have crafted rules 

that strike a balance between utility for 

consumers and compliance burdens for 

industry including smaller providers, 

we took certain additional important 

measures. For example, Commission 

staff continues to refine the mobile MBA 

program, which could at the appropriate 

time be declared a safe harbor for 

mobile broadband providers. In 

addition, we have declined to require 

certain disclosures proposed in the 2014 

Open Internet NPRM such as the source 

of congestion, packet corruption, and 

jitter in recognition of commenter 

concerns with the benefits and difficulty 


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of making these particular disclosures. 

Noting commenter concerns, we also 

decline to mandate separate tailored 

disclosures for different audiences (e.g. 

end users and edge providers) at this 

time. Lastly, we note that many of the 

enhanced disclosures specified in the 

Order may have been required under the 

current transparency rule. As a result, 

we believe the enhanced requirements 

make more explicit many of the existing 

requirements rather than imposing new 

regulatory burdens on providers that are 

in compliance with our current rule. 

F. Report to Congress 

645. The Commission will send a 

copy of the Order, including this FRFA, 

in a report to be sent to Congress and 

the Government Accountability Office 

pursuant to the Small Business 

Regulatory Enforcement Fairness Act of 

1996. In addition, the Commission will 

send a copy of the Order, including the 

FRFA, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. A copy of the Order 

and FRFA (or summaries thereof) will 

also be published in the Federal 

Register. 

List of Subjects in 47 CFR Parts 1, 8, 

and 20 

Cable television, Communications, 

Common carriers, Communications 

common carriers, Radio, 

Telecommunications, Telephone. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 1, 8 

and 20 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 15 U.S.C. 79, et seq.; 47 U.S.C. 

151, 154(i), 154(j), 155, 157, 160, 201, 225, 

227, 303, 309, 332, 1403, 1404, 1451, 1452, 

and 1455. 

■ 2. Section 1.49 is amended by revising 

paragraph (f)(1)(i) to read as follows: 

§ 1.49 Specifications as to pleadings and 

documents. 

* * * * * 

(f) * * * 

(1) * * * 

(i) Formal complaint proceedings 

under Section 208 of the Act and rules 

in §§ 1.720 through 1.736, pole 

attachment complaint proceedings 

under Section 224 of the Act and rules 

in §§ 1.1401 through 1.1424, and formal 

complaint proceedings under Open 

Internet rules §§ 8.12 through 8.17, and; 

* * * * * 

PART 8—PROTECTING AND 

PROMOTING THE OPEN INTERNET 

■ 3. The authority citation for part 8 is 

revised to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

160, 201, 202, 301, 303, 316, 332, 403, 501, 

503, and 1302. 

■ 4. The heading for part 8 is revised as 

set forth above. 

■ 5. Section 8.1 is revised to read as 

follows: 

§ 8.1 Purpose. 

The purpose of this part is to protect 

and promote the Internet as an open 

platform enabling consumer choice, 

freedom of expression, end-user control, 

competition, and the freedom to 

innovate without permission, and 

thereby to encourage the deployment of 

advanced telecommunications 

capability and remove barriers to 

infrastructure investment. 

§ 8.11 [Redesignated as § 8.2] 

■ 6. Section 8.11 is redesignated as § 8.2 

and is revised to read as follows: 

§ 8.2 Definitions. 

(a) Broadband Internet access service. 

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. 

(b) Edge provider. 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. 

(c) End user. Any individual or entity 

that uses a broadband Internet access 

service. 

(d) Fixed broadband Internet access 

service. A broadband Internet access 

service that serves end users primarily 

at fixed endpoints using stationary 

equipment. Fixed broadband Internet 

access service includes fixed wireless 

services (including fixed unlicensed 

wireless services), and fixed satellite 

services. 

(e) Mobile broadband Internet access 

service. A broadband Internet access 

service that serves end users primarily 

using mobile stations. 

(f) Reasonable network management. 

A network management practice is a 

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. 

■ 7. Section 8.5 is revised to read as 

follows: 

§ 8.5 No blocking. 

A person engaged in the provision of 

broadband Internet access service, 

insofar as such person is so engaged, 

shall not block lawful content, 

applications, services, or non-harmful 

devices, subject to reasonable network 

management. 

■ 8. Section 8.7 is revised to read as 

follows: 

§ 8.7 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. 

§ 8.9 [Redesignated as § 8.19] 

■ 9. Section 8.9 is redesignated as 

§ 8.19. 

■ 10. Add new § 8.9 to read as follows: 

§ 8.9 No paid prioritization. 

(a) A person engaged in the provision 

of broadband Internet access service, 

insofar as such person is so engaged, 

shall not engage in paid prioritization. 

(b) ‘‘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; 

(1) In exchange for consideration 

(monetary or otherwise) from a third 

party, or 

(2) To benefit an affiliated entity. 

(c) The Commission may waive the 

ban on paid prioritization only if the 

petitioner demonstrates that the practice 

would provide some significant public 


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interest benefit and would not harm the 

open nature of the Internet. 

■ 11. Add new § 8.11 to read as follows: 

§ 8.11 No unreasonable interference or 

unreasonable disadvantage standard for 

Internet conduct. 

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 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 

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. 

■ 12. Section 8.13 is amended by 

revising paragraphs (a)(4), and (b), and 

by redesignating paragraphs (c) and (d) 

as paragraphs (d) and (e), and adding 

new paragraph (c) to read as follows: 

§ 8.13 General pleading requirements. 

(a) * * * 

(4) The original of all pleadings and 

submissions by any party shall be 

signed by that party, or by the party’s 

attorney. Complaints must be signed by 

the complainant. The signing party shall 

state his or her address, telephone 

number, email address, and the date on 

which the document was signed. Copies 

should be conformed to the original. 

Each submission must contain a written 

verification that the signatory has read 

the submission and, to the best of his or 

her knowledge, information and belief 

formed after reasonable inquiry, it is 

well grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification or 

reversal of existing law; and that it is 

not interposed for any improper 

purpose. If any pleading or other 

submission is signed in violation of this 

provision, the Commission shall upon 

motion or upon its own initiative 

impose appropriate sanctions. 

* * * * * 

(b) Initial Complaint: Fee remittance; 

Service; Copies to be filed. The 

complainant shall remit separately the 

correct fee either by check, wire 

transfer, or electronically, in accordance 

with part 1, subpart G (see § 1.1106 of 

this chapter) and: 

(1) Shall file an original copy of the 

complaint, using the Commission’s 

Electronic Comment Filing System, and, 

on the same day: 

(2) Serve the complaint by hand 

delivery on either the named defendant 

or one of the named defendant’s 

registered agents for service of process, 

if available, on the same date that the 

complaint is filed with the Commission; 

(c) Subsequent Filings: Service; Copies 

to be filed. (1) All subsequent 

submissions shall be filed using the 

Commission’s Electronic Comment 

Filing System. In addition, all 

submissions shall be served by the filing 

party on the attorney of record for each 

party to the proceeding, or, where a 

party is not represented by an attorney, 

each party to the proceeding either by 

hand delivery, overnight delivery, or by 

email, together with a proof of such 

service in accordance with the 

requirements of § 1.47(g) of this chapter. 

(2) Service is deemed effective as 

follows: 

(i) Service by hand delivery that is 

delivered to the office of the recipient 

by 5:30 p.m., local time of the recipient, 

on a business day will be deemed 

served that day. Service by hand 

delivery that is delivered to the office of 

the recipient after 5:30 p.m., local time 

of the recipient, on a business day will 

be deemed served on the following 

business day; 

(ii) Service by overnight delivery will 

be deemed served the business day 

following the day it is accepted for 

overnight delivery by a reputable 

overnight delivery service; or 

(iii) Service by email that is fully 

transmitted to the office of the recipient 

by 5:30 p.m., local time of the recipient, 

on a business day will be deemed 

served that day. Service by email that is 

fully transmitted to the office of the 

recipient after 5:30 p.m., local time of 

the recipient, on a business day will be 

deemed served on the following 

business day. 

(3) Parties shall provide hard copies 

of all submissions to staff in the Market 

Disputes Resolution Division of the 

Enforcement Bureau upon request. 

* * * * * 

■ 13. Section 8.14 is amended by 

redesignating paragraphs (g) and (h) as 

paragraphs (h) and (i) and adding new 

paragraph (g) to read as follows: 

§ 8.14 General formal complaint 

procedures. 

* * * * * 

(g) Request for written opinion from 

outside technical organization. (1) After 

reviewing the pleadings, and at any 

stage of the proceeding thereafter, the 

Enforcement Bureau may, in its 

discretion, request a written opinion 

from an outside technical organization 

regarding one or more issues in dispute. 

(2)(i) Wherever possible, the opinion 

shall be requested from an outside 

technical organization whose members 

do not include any of the parties to the 

proceeding. 

(ii) If no such outside technical 

organization exists, or if the 

Enforcement Bureau in its discretion 

chooses to request an opinion from an 

organization that includes among its 

members a party to the proceeding, the 

Bureau shall instruct the organization 

that any representative of a party to the 

proceeding within the organization may 

not participate in either the 

organization’s consideration of the 

issue(s) referred or its drafting of the 

opinion. 

(iii) No outside technical organization 

shall be required to respond to the 

Bureau’s request. 

(3)(i) If an opinion from an outside 

technical organization is requested and 

the request is accepted, the Enforcement 

Bureau shall notify the parties to the 

dispute of the request within ten (10) 

days and shall provide them copies of 

the opinion once it is received. 

(ii) The outside technical organization 

shall provide its opinion within thirty 

(30) days of the Enforcement Bureau’s 

request, unless otherwise specified by 

the Bureau. 

(iii) Parties shall be given the 

opportunity to file briefs in reply to the 

opinion. 

* * * * * 

■ 14. Section 8.16 is revised to read as 

follows: 

§ 8.16 Confidentiality of proprietary 

information. 

(a) Any materials generated in the 

course of a proceeding under this part 

may be designated as proprietary by 

either party to the proceeding or a third 

party if the party believes in good faith 

that the materials fall within an 

exemption to disclosure contained in 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552(b) (1) through (9). Any 

party asserting confidentiality for such 

materials must: 

(1) Clearly mark each page, or portion 

thereof, for which a proprietary 

designation is claimed. If a proprietary 

designation is challenged, the party 

claiming confidentiality shall have the 

burden of demonstrating, by a 

preponderance of the evidence, that the 

materials designated as proprietary fall 

under the standards for nondisclosure 

enunciated in the FOIA. 

(2) File with the Commission, using 

the Commission’s Electronic Comment 

Filing System, a public version of the 

materials that redacts any proprietary 

information and clearly marks each page 

of the redacted public version with a 

header stating ‘‘Public Version.’’ The 

redacted document shall be machinereadable whenever technically possible. 


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Where the document to be filed 

electronically contains metadata that is 

confidential or protected from 

disclosure by a legal privilege 

(including, for example, the attorneyclient privilege), the filer may remove 

such metadata from the document 

before filing it electronically. 

(3) File with the Secretary’s Office an 

unredacted hard copy version of the 

materials that contain the proprietary 

information and clearly marks each page 

of the unredacted confidential version 

with a header stating ‘‘Confidential 

Version.’’ The unredacted version must 

be filed on the same day as the redacted 

version. 

(4) Serve one hard copy of the filed 

unredacted materials and one hard copy 

of the filed redacted materials on the 

attorney of record for each party to the 

proceeding, or where a party is not 

represented by an attorney, each party 

to the proceeding either by hand 

delivery, overnight delivery, or email, 

together with a proof of such service in 

accordance with the requirements of 

§ 1.47(g) of this chapter and 

§ 8.13(c)(1)(a) through (c). 

(b) Except as provided in paragraph 

(c) of this section, materials marked as 

proprietary may be disclosed solely to 

the following persons, only for use in 

the proceeding, and only to the extent 

necessary to assist in the prosecution or 

defense of the case: 

(1) Counsel of record representing the 

parties in the complaint action and any 

support personnel employed by such 

attorneys; 

(2) Officers or employees of the 

opposing party who are named by the 

opposing party as being directly 

involved in the prosecution or defense 

of the case; 

(3) Consultants or expert witnesses 

retained by the parties; 

(4) The Commission and its staff; and 

(5) Court reporters and stenographers 

in accordance with the terms and 

conditions of this section. 

(c) The Commission will entertain, 

subject to a proper showing under 

§ 0.459 of this chapter, a party’s request 

to further restrict access to proprietary 

information. Pursuant to § 0.459 of this 

chapter, the other parties will have an 

opportunity to respond to such requests. 

Requests and responses to requests may 

not be submitted by means of the 

Commission’s Electronic Comment 

Filing System but instead must be filed 

under seal with the Office of the 

Secretary. 

(d) The individuals designated in 

paragraphs (b)(1) through (3) of this 

section shall not disclose information 

designated as proprietary to any person 

who is not authorized under this section 

to receive such information, and shall 

not use the information in any activity 

or function other than the prosecution 

or defense in the case before the 

Commission. Each individual who is 

provided access to the information shall 

sign a notarized statement affirmatively 

stating that the individual has 

personally reviewed the Commission’s 

rules and understands the limitations 

they impose on the signing party. 

(e) No copies of materials marked 

proprietary may be made except copies 

to be used by persons designated in 

paragraphs (b) and (c) of this section. 

Each party shall maintain a log 

recording the number of copies made of 

all proprietary material and the persons 

to whom the copies have been provided. 

(f) Upon termination of a complaint 

proceeding, including all appeals and 

petitions, all originals and 

reproductions of any proprietary 

materials, along with the log recording 

persons who received copies of such 

materials, shall be provided to the 

producing party. In addition, upon final 

termination of the proceeding, any notes 

or other work product derived in whole 

or in part from the proprietary materials 

of an opposing or third party shall be 

destroyed. 

■ 16. Section 8.18 is added to read as 

follows: 

§ 8.18 Advisory opinions. 

(a) Procedures. (1) Any entity that is 

subject to the Commission’s jurisdiction 

may request an advisory opinion from 

the Enforcement Bureau regarding its 

own proposed conduct that may 

implicate the open Internet rules or any 

rules or policies related to the open 

Internet that may be adopted in the 

future. Requests for advisory opinions 

may be filed via the Commission’s Web 

site or with the Office of the Secretary 

and must be copied to the Chief of the 

Enforcement Bureau and the Chief of 

the Investigations and Hearings Division 

of the Enforcement Bureau. 

(2) The Enforcement Bureau may, in 

its discretion, refuse to consider a 

request for an advisory opinion. If the 

Bureau declines to respond to a request, 

it will inform the requesting party in 

writing. 

(3) Requests for advisory opinions 

must relate to prospective or proposed 

conduct that the requesting party 

intends to pursue. The Enforcement 

Bureau will not respond to requests for 

opinions that relate to ongoing or prior 

conduct, and the Bureau may initiate an 

enforcement investigation to determine 

whether such conduct violates the open 

Internet rules. Additionally, the Bureau 

will not respond to requests if the same 

or substantially the same conduct is the 

subject of a current government 

investigation or proceeding, including 

any ongoing litigation or open 

rulemaking at the Commission. 

(4) Requests for advisory opinions 

must be accompanied by all material 

information sufficient for Enforcement 

Bureau staff to make a determination on 

the proposed conduct for which review 

is requested. Requesters must certify 

that factual representations made to the 

Bureau are truthful and accurate, and 

that they have not intentionally omitted 

any information from the request. A 

request for an advisory opinion that is 

submitted by a business entity or an 

organization must be executed by an 

individual who is authorized to act on 

behalf of that entity or organization. 

(5) Enforcement Bureau staff will have 

discretion to ask parties requesting 

opinions, as well as other parties that 

may have information relevant to the 

request or that may be impacted by the 

proposed conduct, for additional 

information that the staff deems 

necessary to respond to the request. 

Such additional information, if 

furnished orally or during an in-person 

conference with Bureau staff, shall be 

promptly confirmed in writing. Parties 

are not obligated to respond to staff 

inquiries related to advisory opinions. If 

a requesting party fails to respond to a 

staff inquiry, then the Bureau may 

dismiss that party’s request for an 

advisory opinion. If a party voluntarily 

responds to a staff inquiry for additional 

information, then it must do so by a 

deadline to be specified by Bureau staff. 

Advisory opinions will expressly state 

that they rely on the representations 

made by the requesting party, and that 

they are premised on the specific facts 

and representations in the request and 

any supplemental submissions. 

(b) After review of a request submitted 

hereunder, the Enforcement Bureau 

will: 

(1) Issue an advisory opinion that will 

state the Bureau’s present enforcement 

intention with respect to the proposed 

open Internet practices; 

(2) Issue a written statement declining 

to respond to the request; or; 

(3) Take such other position or action 

as it considers appropriate. An advisory 

opinion states only the enforcement 

intention of the Enforcement Bureau as 

of the date of the opinion, and it is not 

binding on any party. Advisory 

opinions will be issued without 

prejudice to the Enforcement Bureau or 

the Commission to reconsider the 

questions involved, or to rescind or 

revoke the opinion. Advisory opinions 

will not be subject to appeal or further 

review. 


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(c) The Enforcement Bureau will have 

discretion to indicate the Bureau’s lack 

of enforcement intent in an advisory 

opinion based on the facts, 

representations, and warranties made by 

the requesting party. The requesting 

party may rely on the opinion only to 

the extent that the request fully and 

accurately contains all the material facts 

and representations necessary to 

issuance of the opinion and the 

situation conforms to the situation 

described in the request for opinion. 

The Bureau will not bring an 

enforcement action against a requesting 

party with respect to any action taken in 

good faith reliance upon an advisory 

opinion if all of the relevant facts were 

fully, completely, and accurately 

presented to the Bureau, and where 

such action was promptly discontinued 

upon notification of rescission or 

revocation of the Commission’s or 

Bureau’s approval. 

(d) Public disclosure. The 

Enforcement Bureau will make advisory 

opinions available to the public on the 

Commission’s Web site. The Bureau will 

also publish the initial request for 

guidance and any associated materials. 

Parties soliciting advisory opinions may 

request confidential treatment of 

information submitted in connection 

with a request for an advisory opinion 

pursuant to § 0.459 of this chapter. 

(e) Withdrawal of request. Any 

requesting party may withdraw a 

request for review at any time prior to 

receipt of notice that the Enforcement 

Bureau intends to issue an adverse 

opinion, or the issuance of an opinion. 

The Enforcement Bureau remains free, 

however, to submit comments to such 

requesting party as it deems 

appropriate. Failure to take action after 

receipt of documents or information, 

whether submitted pursuant to this 

procedure or otherwise, does not in any 

way limit or stop the Bureau from taking 

such action at such time thereafter as it 

deems appropriate. The Bureau reserves 

the right to retain documents submitted 

to it under this procedure or otherwise 

and to use them for all governmental 

purposes. 

PART 20—COMMERCIAL MOBILE 

SERVICES 

■ 17. The authority citation for part 20 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 154(i), 

201(b), 225, 301, 303(b), 303(g), 303(r), 316, 

403, 615a, 615a–1, 615b, and 47 U.S.C. 615c. 

■ 18. Section 20.3 is amended by 

revising paragraph (b) in the definition 

of ‘‘Commercial mobile radio service’’, 

designating in the correct alphabetical 

order the definition of ‘‘Incumbent Wide 

Area SMR Licensees,’’ revising 

paragraph (a) in the definition of 

‘‘Interconnected Service’’ and revising 

the definition of ‘‘Public Switched 

Network’’ to read as follows: 

§ 20.3 Definitions. 

* * * * * 

Commercial mobile radio service. 

* * * 

(b) The functional equivalent of such 

a mobile service described in paragraph 

(a) of this section, including a mobile 

broadband Internet access service as 

defined in § 8.2 of this chapter. 

* * * * * 

Interconnected Service. A service: 

(a) That is interconnected with the 

public switched network, or 

interconnected with the public switched 

network through an interconnected 

service provider, that gives subscribers 

the capability to communicate to or 

receive communication from other users 

on the public switched network; or 

* * * * * 

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. 2015–07841 Filed 4–10–15; 8:45 am] 

BILLING CODE 6712–01–P 


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