What ISPs Should Know About FCC Title II/Open Internet Order

On May 7, 2024, the FCC issued a declaratory judgment that reclassified “broadband Internet access service” (BIAS) as a “telecommunications service,” thereby subjecting it to the FCC’s jurisdiction under Title II of the Communications Act. Accompanying this ruling was an order exempting BIAS from most Title II provisions and a report and order implementing a set of open internet principles for BIAS providers. (For simplicity, this blog will refer to these activities collectively as an “Order”).

While the mainstream media has largely focused on the net neutrality aspects of the Order – which stems from the FCC’s goal of enforcing open internet rules – this post will discuss other significant implications of the recent reclassification of broadband regulations. In upcoming posts, we’ll dive deeper into net neutrality and the future of the Order.

The importance of the Order lies not in its immediate impact on ISPs, but in the long-term structural change it represents. If it survives legal challenges, the Order will grant the FCC jurisdictional authority over the primary means of communication of our time.

Scope of reclassification: “Broadband Internet access service”. The regulation defines BIAS as “a retail service available in the mass market by wire or radio that provides the ability to transmit data to and receive data from all or substantially all endpoints of the Internet, including any functionality that is incidental to and enables the operation of the communications service, but excluding telephone Internet access service.

BIAS covers services provided over any technology platform, including wireline, terrestrial, wireless (both fixed and mobile, using licensed or unlicensed spectrum) and satellite. The FCC also affirmed the classification of mobile BIAS as a commercial mobile service under Title II, pursuant to Section 332(d)(1) of the Communications Act.

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