On June 14, 2016, the United States Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s (FCC’s or Commission’s) 2015 Open Internet Order (2015 Open Internet Order), which classified broadband Internet access service (BIAS) as a “telecommunications service” under Title II of the Communications Act of 1934, as amended, and imposed a slate of “open Internet” and traditional common-carrier regulations on BIAS. The 2015 Open Internet Order was the Commission’s third attempt at imposing Open Internet regulations, after the first two attempts were overturned by the D.C. Circuit. Although additional appeal options are available, this decision is likely to hold and it removes substantial doubt about the Commission’s efforts to regulate BIAS. In the short term, the decision is likely going to embolden the Commission to undertake enforcement actions under its Open Internet rules, and pursue its rulemaking proceeding on broadband privacy rules. The Commission also will likely begin looking at other broadband practices, such as its ongoing inquiry into the zero-rating practices of various BIAS providers. As a result, BIAS providers should review carefully their practices and policies to ensure compliance with the Commission’s newly affirmed rules.
To see our full client advisory please click here. If you have any questions about the open Internet rules or the decision, feel free to reach out to the authors of this blog post or your usual Kelley Drye contact for more information.