The FCC explained its recent rulings on municipal broadband and network neutrality in a specialized briefing for state and local governments on Monday, March 30.
The hour-long presentation detailed the FCC’s rationale and authority in vacating state restrictions on broadband and its controversial decision to regulate Internet access using Title II of the Communications Act of 1934. Focus was placed on how those decisions could potentially affect local regions in the country.
Daniel Kahn, deputy chief of the Commission’s Competition Policy Division, noted that the FCC’s Feb. 26 decision to vacate state laws that restricted muni-broadband expansion only applied to North Carolina and Tennessee. The FCC relies on Section 706 of the 1996 Telecommunications Act for its authority to pre-empt state laws that enact barriers to broadband infrastructure investment and competition.
If cities and counties want to offer their own Internet service, but are prevented from doing so because of state restrictions, they need to file their own petitions with the FCC, Kahn said.
Gregory Vadas, chief of the Intergovernmental Affairs Office of the Commission’s Consumer and Governmental Affairs Bureau, echoed Kahn’s comments, emphasizing the need for local governments to come forward if they feel they are unjustly blocked from expanding Internet access.
“The scope of the pre-emption petition order only applies to those states,” Vadas said. “As other localities submit petitions, we’ll look at them on a case-by-case basis. So it’s not a sweeping order that automatically applies to all localities in all states.”
The state of Tennessee filed a lawsuit challenging the FCC’s order with the U.S. of Appeals for the Sixth Circuit. The case is pending.
The commission also went into the finer details of its application of Title II of the Communications Act of 1934 to regulate access to the Internet. Commonly referred to as net neutrality or “Open Internet Rules,” the FCC believes it can use “light-touch” regulation of the Internet to heighten competition among providers and ensure U.S. citizens have unfiltered access to the Web without paid prioritization or speed throttling.
Claude Aiken, deputy chief of the FCC Wireline Competition Bureau’s Competition Policy Division, gave an overview of the three “bright line” rules of the decision: no blocking Internet traffic, including legal content or application services; no throttling of upload and download speeds; and paid content cannot be prioritized higher than any other data.
“By this, we mean that broadband providers may not favor some lawful Internet traffic over others in exchange or consideration of any kind,” Aiken said. “In other words, no fast lanes. This rule also bans ISPs from prioritizing content and services of their affiliates.”
In addition, Aiken explained that the commission adopted a “general conduct rule” to address situations where one of the three bright-line rules may not be violated, but still interferes with consumers’ access to lawful Internet content. In short, ISPs can’t unreasonably disadvantage consumers to select access services, apps and devices. Violations of that will be reviewed on a case-by-case basis by the FCC.
Aiken added that while the FCC used Title II as its regulatory basis, it refrained from applying a number of provisions in Title II to the open Internet. Some of those provisions that do not apply include those dealing with rate regulation, tariffing and unbundling – provisions typically associated with utility regulation.
“The order says that states themselves are bound by the forbearance decisions in the order,” Aiken said. “The order also does re-affirm the commission’s prior findings that [Internet access] service is jurisdictionally interstate for regulatory purposes.”
The U.S. Telecom Association and various independent Internet Service Providers, have already sued the FCC regarding its decision.
Brian Heaton was a writer for Government Technology magazine from 2011 to mid-2015.