FCC Releases Text of New Title II Order

On May 7, the FCC released the text of its Safeguarding and Securing the Open Internet Order – that is, the agency's new Title II Order. By a 3-2 vote on April 25, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act. It established a public utility regulatory regime for broadband. Under that regime, broadband Internet service providers are subject to bright-line restrictions on network management and a vague "catch-all" standard. Broadband providers will be subject to informal and formal complaint proceedings for alleged violations of the Commission's rules and "catch-all" standard.

The Free State Foundation filed comments and reply comments in the FCC's Safeguarding and Securing the Open Internet proceeding that opposed public utility regulation of broadband services. In the weeks and days leading up to the Commission's April 25 vote, Perspectives from FSF Scholars papers were published on the agency's empty national security and public safety rationales for Title II regulation, the legal problems with Title II reclassification under the Supreme Court's Major Questions Doctrine, and the harm to innovative 5G "network slicing" under Title II. Additionally, an April 25 Press Release by FSF President Randolph May and I provided a brief initial response to the Commission's vote to adopt its new Title II Order. 

My Federalist Society Blog post from May 3 analyzing the Second Circuit's decision in New York State Telecommunications Association, Inc. v. James, pointed to questions still needing to be directly sorted out regarding preemption and specific state-level rate regulation of interstate broadband Internet services. Now that the text of the new Title II Order has been publicly released, expect forthcoming analyses from FSF scholars about rate regulation as well as other law and policy issues and implications of the Order.