Highlights Of The 2015 Open Internet Order

Five years ago, the FCC adopted the Preserving the Open Internet Report and Order ("2010 Open Internet Order") which prohibited blocking and discrimination and imposed disclosure requirements for fixed Internet providers.1 Just over a year ago, the D.C. Circuit Court in Verizon v. FCC struck down the blocking and antidiscrimination provisions and upheld the disclosure requirements.2The gravamen of the Verizon decision was that the FCC sought to impose common carrier requirements on Internet providers who had previously been found to be information services providers and not telecommunication services providers.3

On April 13, 2015, the Commission published new rules in the Federal Register implementing its Protecting and Promoting the Open Internet Report and Order ("2015 Open Internet Order").4 The 2015 Open Internet Order seeks to address the concerns raised by Verizon by re-classifying Internet providers as subject to common carrier provisions of Title II of the Communications Act5 and creating substantial new rules and requirements designed to protect what the FCC calls the "virtuous cycle"6 of the Internet. In addition, while the 2010 Open Internet Order applied to only the relationship between Internet providers and their customers, the 2015 Open Internet Order covers the entire ecosystem of broadband Internet service from the edge provider through the Internet provider to the ultimate consumer. It also covers mobile Internet providers. In the 2015 Open Internet Order, the FCC also exercised its right under Section 10 of the Communications Act7 to employ broad forbearance from imposing a significant number of the requirements of Title II on Internet Providers.

Highlights of the 2015 Open Internet Order

The 2015 Open Internet Order imposes "bright-line" rules that prohibit blocking, throttling, and paid prioritization and establishes enhanced transparency requirements. Specifically, the new rules provide:

No blocking: Subject to reasonable network management, a Service Provider may not block lawful content, applications, services, or non-harmful devices.8 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...