The Federal Communications Commission (FCC) on March 12, 2015, released a new template for future regulation of a basket of mass market retail services it has named “broadband Internet access services” (BIAS). This highly anticipated Order reviews the agency’s history of attempting to fashion policies and later rules designed to temper or prohibit what the agency views as potentially adverse practices of BIAS providers. It asserts that all BIAS providers, both fixed and mobile, are offering both consumers and edge providers broadband access and transmission capabilities as customers and, as a result, that BIAS providers should be treated going forward as “lightly regulated” telecommunication service providers.

The justification offered for the change in regulatory classification of broadband Internet access from an information service to a telecommunications service is that both the broadband market and technology have evolved over the last 15 or more years and that underlying service models have also evolved.

Broadband Internet access service (BIAS) is:

A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

Open Internet Rules:

The rules of the road for BIAS providers will be:

• No Blocking;

• No Throttling;

• No Paid Prioritization;

• Transparency (disclosures of terms, conditions and practices); and

• A no Unreasonable Interference/Disadvantage Standard of Conduct to be evaluated on a case by case basis.

Enforcement:

Two options are available for parties aggrieved by potentially harmful BIAS practices:

• Filing of informal complaints (which provide end users, edge providers, and others with a simple vehicle for bringing potential open Internet violations to the FCC’s attention); or

• Filing of formal complaints (which allow any person to file a complaint alleging a rule violation and to participate in an adjudicatory proceeding to resolve the complaint).

The appeals filed before the Order was published in the Federal Register on April 13, 2015 have been consolidated in the D.C. Circuit. It is not certain that this will be the court to ultimately resolve the challenges in view of the additional lottery petitions expected to be filed. Since the Order’s publication in the Federal Register, CTIA, NCTA, ACA, and AT&T have filed suit in the D.C. Circuit as well.