[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Rules and Regulations]
[Pages 45404-45556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10674]



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Vol. 89

Wednesday,

No. 100

May 22, 2024

Part V





Federal Communications Commission





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47 CFR Parts 8 and 20





 Safeguarding and Securing the Open Internet; Restoring Internet 
Freedom; Final Rule

  Federal Register / Vol. 89 , No. 100 / Wednesday, May 22, 2024 / 
Rules and Regulations  

[[Page 45404]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 8 and 20

[WC Docket Nos. 23-320, 17-108; FCC 24-52, FR ID 219926]


Safeguarding and Securing the Open Internet; Restoring Internet 
Freedom

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) adopts a Declaratory Ruling, Report and Order, 
Order, and Order on Reconsideration that reestablishes the Commission's 
authority over broadband internet access service (BIAS). The 
Declaratory Ruling classifies broadband internet access service as a 
telecommunications service under Title II of the Communications Act, 
providing the Commission with additional authority to safeguard 
national security, advance public safety, protect consumers, and 
facilitate broadband deployment. The Order establishes broad, tailored 
forbearance of the Commission's application of Title II to broadband 
providers while maintaining Title II provisions the Commission needs to 
fulfill its obligations and objectives. The Report and Order reinstates 
straightforward, clear rules that prohibit blocking, throttling, or 
engaging in paid or affiliated prioritization arrangements, adopts 
certain enhancements to the transparency rule, and reinstates a general 
conduct standard that prohibits unreasonable interference or 
unreasonable disadvantage to consumers or edge providers. The Order on 
Reconsideration partially grants and otherwise dismisses as moot four 
petitions for reconsideration filed in response to the 2020 Restoring 
Internet Freedom Remand Order.

DATES: Effective July 22, 2024, except for amendatory instruction 7 
(revisions to 47 CFR 8.2(a) and (b)), which is delayed indefinitely. 
The FCC will publish a document in the Federal Register announcing the 
effective date.
    As of September 19, 2024, China Mobile International (USA) Inc., 
China Telecom (Americas) Corporation, China Unicom (Americas) 
Operations Limited, Pacific Networks Corp., and ComNet (USA) LLC, and 
their affiliates and subsidiaries as defined pursuant to 47 CFR 
2.903(c), shall discontinue any and all provision of broadband internet 
access service.

ADDRESSES: Federal Communications Commission, 45 L Street SW, 
Washington, DC 20554. In addition to filing comments with the Office of 
the Secretary, a copy of any comments on the Paperwork Reduction Act 
information collection requirements contained herein should be 
submitted to Nicole Ongele, Federal Communications Commission, 45 L 
Street SW, Washington, DC 20554, or send an email to [email protected].

FOR FURTHER INFORMATION CONTACT: For further information, contact Chris 
Laughlin, Wireline Competition Bureau at 202-418-2193. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an email to 
[email protected] or contact Nicole Ongele, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration in WC Docket Nos. 23-320 and 17-108, FCC 24-52, adopted 
on April 25, 2024, and released on May 7, 2024. The full text of the 
document is available on the Commission's website at https://docs.fcc.gov/public/attachments/FCC-24-52A1.pdf. To request materials 
in accessible formats for people with disabilities (e.g., braille, 
large print, electronic files, audio format, etc.), send an email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
(202) 418-0530 (voice).

Paperwork Reduction Act of 1995 Analysis

    This document contains new or modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, will invite the general public to comment on 
the information collection requirements contained in the Report and 
Order as required by the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, the Commission notes that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
    In the Report and Order, we adopt the transparency rule originally 
adopted in 2010 and reaffirmed in 2015, which caters to a broader 
relevant audience of interested parties than the audience identified in 
the Restoring Internet Freedom (RIF) Order (83 FR 7852 (Feb. 22, 
2018)). We reinstate enhancements to the transparency rule disclosures 
pertaining to network practices and performance characteristics. 
Specifically, with regard to network practices, we reaffirm that the 
transparency rule requires that BIAS providers disclose any practices 
applied to traffic associated with a particular user or user group 
(including any application-agnostic degradation of service to a 
particular end user), and requires that disclosures of user-based or 
application-based practices must include the purpose of the practice; 
which users or data plans may be affected; the triggers that activate 
the use of the practice; the types of traffic that are subject to the 
practice; and the practice's likely effects on end users' experiences. 
In addition, we require BIAS providers to disclose any zero-rating 
practices.
    We reinstate the enhanced performance characteristics disclosures 
eliminated in 2017 to require BIAS providers to disclose packet loss 
and to require that performance characteristics be reported with 
greater geographic granularity and be measured in terms of average 
performance over a reasonable period of time and during times of peak 
usage. We also require BIAS providers to directly notify end users if 
their individual use of a network will trigger a network practice, 
based on their demand prior to a period of congestion, that is likely 
to have a significant impact on the end user's use of the service. We 
temporarily exempt (with the potential to become permanent) BIAS 
providers that have 100,000 or fewer BIAS subscribers as per their most 
recent FCC Form 477, aggregated over all affiliates of the provider, 
from the requirements to disclose packet loss and report their 
performance characteristics with greater geographic granularity and in 
terms of average performance over a reasonable period of time and 
during times of peak usage, as well as from the direct notification 
requirement to provide them additional time to develop appropriate 
systems. We delegate to the Consumer and Governmental Affairs Bureau 
(CGB) the authority to determine whether to maintain the exemption, and 
if so, the appropriate bounds of the exemption. We require providers to 
disclose all information required by the transparency rule on a 
publicly available, easily accessible website and that all transparency 
disclosures made pursuant to the transparency rule also be made 
available in machine-readable format.
    In addition, to provide upfront clarity, guidance, and 
predictability, we adopt an updated process for providers seeking an 
advisory opinion from Commission staff regarding the open

[[Page 45405]]

internet rules, through which any BIAS provider may request an advisory 
opinion regarding the permissibility of its proposed policies and 
practices affecting access to BIAS.

Congressional Review Act

    The Commission has determined, and the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
concurs, that this rule is major under the Congressional Review Act, 5 
U.S.C. 804(2). The Commission will send a copy of the Declaratory 
Ruling, Order, Report and Order, and Order on Reconsideration to 
Congress and the Government Accountability Office pursuant to 5 U.S.C. 
801(a)(1)(A).

Synopsis

I. Declaratory Ruling: Classification of Broadband Internet Access 
Services

    1. We reinstate the telecommunications service classification of 
BIAS under Title II of the Act. Reclassification will enhance the 
Commission's ability to ensure internet openness, defend national 
security, promote cybersecurity, safeguard public safety, monitor 
network resiliency and reliability, protect consumer privacy and data 
security, support consumer access to BIAS, and improve disability 
access. We find that classification of BIAS as a telecommunications 
service represents the best reading of the text of the Act in light of 
how the service is offered and perceived today, as well as the factual 
and technical realities of how BIAS functions. Classifying BIAS as a 
telecommunications service also accords with Commission and court 
precedent and is fully and sufficiently justified under the 
Commission's longstanding authority and responsibility to classify 
services subject to the Commission's jurisdiction, as necessary. We 
also ensure that consumers receive the same protections when using 
fixed and mobile BIAS by reclassifying mobile BIAS as a commercial 
mobile service.

A. Reclassification Enhances the Commission's Ability To Fulfill Key 
Public Interest Obligations and Objectives

    2. As the record overwhelmingly demonstrates, BIAS connections are 
absolutely essential to modern day life, facilitating employment, 
education, healthcare, commerce, community-building, communication, and 
free expression. The ``forced digitization'' of the COVID-19 pandemic 
served to underscore the importance of BIAS connections in society as 
essential activities moved online, and the increased importance of BIAS 
connections has only persisted in the wake of the pandemic. It has 
therefore never been more important that the Commission have both the 
necessary authority to oversee this essential service to protect 
consumers, strengthen national security, and support public safety, and 
the full complement of tools to facilitate access to BIAS.
    3. While our conclusion that classifying BIAS as a 
telecommunications service represents the best reading of the Act is 
itself sufficient grounds for our decision, we separately conclude that 
important policy considerations also support this determination. In 
particular, our reclassification decision will ensure the Commission 
can fulfill statutory obligations and policy objectives to ensure 
internet openness, defend national security, promote cybersecurity, 
safeguard public safety, monitor network resiliency and reliability, 
protect consumer privacy and data security, support consumer access to 
BIAS, and improve disability access. As such, these policy obligations 
and objectives, each independently and collectively, support the 
reclassification of BIAS as a telecommunications service. We therefore 
reject arguments that we should address other issues instead of 
reclassifying BIAS, particularly since reclassification will enhance 
the Commission's ability to address many of the issues commenters 
raise.
1. Ensuring Internet Openness
    4. We find that reclassification of BIAS as a telecommunications 
service enables the Commission to more effectively safeguard the open 
internet. In addition to protecting free expression, an open internet 
encourages competition and innovation, and is critical to public 
safety. As we explain below, we find that a safe, secure, and open 
internet is too important to consumers and innovators to leave without 
the protection of Federal regulatory oversight.
    5. Upon this document's reclassification of BIAS as a Title II 
telecommunications service, we rely on our authority in sections 201 
and 202 of the Act, along with the related enforcement authorities of 
sections 206, 207, 208, 209, 216, and 217, for the open internet rules 
we adopt in the Declaratory Ruling, Order, Report and Order, and Order 
(Order) to address practices that are unjust, unreasonable, or 
unreasonably discriminatory. Specifically, we reinstate rules that 
prohibit BIAS providers from blocking or throttling the information 
transmitted over their networks or engaging in paid or affiliated 
prioritization arrangements, and reinstate a general conduct standard 
that prohibits practices that cause unreasonable interference or 
unreasonable disadvantage to consumers or edge providers. As discussed 
more fully below, these rules, in concert with strong transparency 
requirements, establish clear standards for BIAS providers to maintain 
internet openness and give the Commission a solid basis on which to 
take enforcement actions against conduct that prevents consumers from 
fully accessing all of the critical services available through the 
internet. The reclassification also enables the Commission to establish 
a nationwide framework of open internet rules for BIAS providers and 
thereby exercise our authority to preempt any state or local measures 
that interfere or are incompatible with the Federal regulatory 
framework we establish in the Order, while at the same time ensuring 
that all consumers are protected from conduct harmful to internet 
openness.
2. Defending National Security and Law Enforcement
    6. The reclassification of BIAS enhances the Commission's ability 
to protect the Nation's communications networks from entities that pose 
threats to national security and law enforcement. The RIF Order's 
classification of BIAS as an information service under Title I raised 
concerns about the Commission's authority to take certain regulatory 
actions to address risks to BIAS providers and vulnerabilities in 
broadband networks. As the National Telecommunications and Information 
Administration (NTIA) highlights, ``the Commission has encountered 
challenges that have hampered its ability to fully protect the public 
from serious national security threats.'' For example, NTIA describes 
cases where the Commission identified such threats and revoked the 
authority of certain foreign-owned adversarial service providers to 
provide Title II telecommunications services (including ``traditional 
telephony'') in the United States pursuant to its section 214 
authority, but was not able to stop them from providing BIAS or other 
internet-based services that were then classified as Title I services. 
Classifying BIAS under Title II alleviates those concerns, restoring a 
broader range of regulatory tools and enhancing the Commission's 
jurisdiction to cover broadband services, providers, and networks. We 
also find that reclassification will enable the

[[Page 45406]]

Commission to make more significant national security contributions as 
we continue our longstanding coordination with our Federal partners.
    7. We find that reclassification will significantly bolster the 
Commission's ability to carry out its statutory responsibilities to 
safeguard national security and law enforcement. Congress created the 
Commission, among other reasons, ``for the purpose of the national 
defense.'' The Commission's national security responsibilities are well 
established. Presidential Policy Directive 21 (PPD-21) describes the 
Commission's roles as including ``identifying communications sector 
vulnerabilities and working with industry and other stakeholders to 
address those vulnerabilities . . . [and] to increase the security and 
resilience of critical infrastructure within the communications 
sector.'' The President's recent National Security Memorandum, NSM-22, 
recognized the Commission's role in securing critical infrastructure: 
``The Federal Communications Commission will, to the extent permitted 
by law and in coordination with DHS and other Federal departments and 
agencies: (1) identify and prioritize communications infrastructure by 
collecting information regarding communications networks; (2) assess 
communications sector risks and work to mitigate those risks by 
requiring, as appropriate, regulated entities to take specific actions 
to protect communications networks and infrastructure; and (3) 
collaborate with communications sector industry members, foreign 
governments, international organizations, and other stakeholders to 
identify best practices and impose corresponding regulations.''
    8. There can be no question about the importance to our national 
security of maintaining the integrity of our critical infrastructure, 
including communications networks. As PPD-21 explains:

    The Nation's critical infrastructure provides the essential 
services that underpin American society. Proactive and coordinated 
efforts are necessary to strengthen and maintain secure, 
functioning, and resilient critical infrastructure--including 
assets, networks, and systems--that are vital to public confidence 
and the Nation's safety, prosperity, and well-being . . . . The 
Federal Government also has a responsibility to strengthen the 
security and resilience of its own critical infrastructure, for the 
continuity of national essential functions, and to organize itself 
to partner effectively with and add value to the security and 
resilience efforts of critical infrastructure owners and operators . 
. . . It is the policy of the United States to strengthen the 
security and resilience of its critical infrastructure against both 
physical and cyber threats.

    Developments in recent years have only highlighted national 
security concerns arising in connection with the U.S. communications 
sector. These security threats also impact BIAS providers and broadband 
networks. PPD-21 recognizes that ``communications systems [are] 
uniquely critical due to the enabling functions they provide across all 
critical infrastructure sectors,'' which highlights the importance of 
protecting communications infrastructure--including broadband networks. 
Disruptions of communications can easily have significant cascading 
effects on other critical infrastructure sectors that rely on 
communications. The PPD-21 states, ``U.S. efforts shall address the 
security and resilience of critical infrastructure in an integrated, 
holistic manner to reflect this infrastructure's interconnectedness and 
interdependency. This directive also identifies energy and 
communications systems as uniquely critical due to the enabling 
functions they provide across all critical infrastructure sectors.'' We 
find that reclassification of BIAS under Title II will enable the 
Commission to more fully utilize its regulatory authority and rely on 
its subject matter expertise and operational capabilities to address 
these concerns and strengthen the security posture of the United 
States. As NTIA explains, the ``lightning-fast evolutions of our 
communications technologies and our growing dependence on these 
offerings necessitate a whole-of-government approach to security that 
engages all available federal government resources.''
    9. The Commission has on multiple occasions carried out its 
responsibilities to protect the Nation's communications networks from 
threats to national security and law enforcement by taking regulatory 
actions under Title II regarding the provision of traditional 
telecommunications services, including voice. For example, the 
Commission denied an application for international section 214 
authority and revoked the section 214 authority of, certain entities 
that are majority-owned and controlled by the Chinese government, based 
on recommendations and comments from interested Executive Branch 
agencies regarding evolving national security and law enforcement 
concerns. In the China Mobile USA Order, China Telecom Americas Order 
on Revocation and Termination, China Unicom Americas Order on 
Revocation, and Pacific Networks and ComNet Order on Revocation and 
Termination, the Commission found that these entities are subject to 
exploitation, influence, and control by the Chinese government, and 
that mitigation would not address the national security and law 
enforcement concerns. In the China Telecom Americas Order on Revocation 
and Termination, China Unicom Americas Order on Revocation, and Pacific 
Networks and ComNet Order on Revocation and Termination, the Commission 
also found that the significant national security and law enforcement 
risks associated with those entities' retention of their section 214 
authority ``pose a clear and imminent threat to the security of the 
United States.'' More recently, the Commission adopted the Evolving 
Risks Notice of Proposed Rulemaking (NPRM) (88 FR 50486 (Aug. 1, 
2023)), which, among other things, proposed rules that would require 
carriers to renew, every 10 years, their international section 214 
authority. In the alternative, the Commission sought comment on 
adopting rules that would require all international section 214 
authorization holders to periodically update information enabling the 
Commission to review the public interest and national security 
implications of those authorizations based on that updated information. 
As stated in the Evolving Risks NPRM, the overarching objective of that 
proceeding is to adopt rule changes ``that will enable the Commission, 
in close collaboration with relevant Executive Branch agencies, to 
better protect telecommunications services and infrastructure in the 
United States in light of evolving national security, law enforcement, 
foreign policy, and trade policy risks.''
    10. The reclassification of BIAS as a Title II service, and our 
decision below to decline to forbear from the entry certification 
requirements of section 214, will enable the Commission to exercise its 
section 214 authority with respect to BIAS providers, and will enhance 
the Commission's ability to protect the Nation's communications 
networks from entities that pose threats to national security and law 
enforcement. Section 214(a) of the Act prohibits any carrier from 
constructing, acquiring, or operating any line, and from engaging in 
transmission through any such line, without first obtaining a 
certificate from the Commission ``that the present or future public 
convenience and necessity require or will require the construction, or 
operation, or construction and operation, of such . . . line . . . .'' 
The Supreme Court has determined that the Commission has

[[Page 45407]]

considerable discretion in deciding how to make its section 214 public 
interest findings. As we discuss elsewhere, while we grant blanket 
section 214 authority for the provision of BIAS to all current and 
future BIAS providers, with exceptions, this grant of blanket authority 
is subject to the Commission's reserved power to revoke such authority, 
consistent with established statutory directives and longstanding 
Commission determinations with respect to section 214 authorizations. 
The Commission has explained that it grants blanket section 214 
authority, rather than forbearing from application or enforcement of 
section 214 entirely, in order to remove barriers to entry without 
relinquishing its ability to protect consumers and the public interest 
by withdrawing such grants on an individual basis. And we find that the 
Commission's determinations, based on thorough record development, in 
the denial and revocation actions discussed below, in which the 
Commission extensively evaluated national security and law enforcement 
considerations associated with those entities, support our decision to 
exclude from this blanket section 214 authority for the provision of 
BIAS those same entities whose application for international section 
214 authority was previously denied or whose domestic and international 
section 214 authority was previously revoked by the Commission because 
of national security and law enforcement concerns. As discussed below, 
we find that excluding those entities and their current and future 
affiliates and subsidiaries from blanket section 214 authority for the 
provision of BIAS is warranted based on the Commission's determinations 
in those proceedings that the present and future public interest, 
convenience, and necessity would no longer be served by the retention 
of those entities' section 214 authority, or that the public interest 
would not be served by the grant of international section 214 
authority. The Commission's actions in those proceedings were based on 
recommendations and comments regarding evolving national security and 
law enforcement concerns from Executive Branch agencies, including from 
Members of, or Advisors to, the Committee for the Assessment of Foreign 
Participation in the U.S. Telecommunications Sector (Committee) created 
pursuant to Executive Order 13913. Our action in the Order will enable 
the Commission to use its section 214 authority to address threats to 
communications networks, working cooperatively with our Federal 
partners and leveraging all investigative tools at our disposal.
    11. Reclassification will also enhance the Commission's ability to 
obtain information from BIAS providers that will enable the Commission 
to assess national security risks, through reliance on section 214 of 
the Act, along with sections 201, 202, 218, 219, and 220. The 
Commission relies on sections 201 and 202 of the Act, and section 706 
of the 1996 Act, for its authority to collect information. 
Additionally, section 218 of the Act authorizes the Commission to seek 
``full and complete information necessary to enable the Commission to 
perform the duties and carry out the objects for which it was 
created.'' Section 219 of the Act provides that ``[t]he Commission is 
authorized to require annual reports from all carriers subject to this 
chapter, and from persons directly or indirectly controlling or 
controlled by, or under direct or indirect common control with, any 
such carrier, to prescribe the manner in which such reports shall be 
made, and to require from such persons specific answers to all 
questions upon which the Commission may need information.'' Section 
220(c) of the Act provides that ``[t]he Commission shall at all times 
have access to and the right of inspection and examination of all 
accounts, records, and memoranda, including all documents, papers, and 
correspondence now or hereafter existing, and kept or required to be 
kept by such carriers, and the provisions of this section.'' As one 
example, in the Evolving Risks Order (88 FR 85514 (Dec. 8, 2023)), the 
Commission adopted a one-time collection of foreign ownership 
information from international section 214 authorization holders, 
pursuant to sections 218 and 219 of the Act, among other statutory 
provisions. Reclassification grants the Commission additional authority 
to develop information collection requirements pursuant to applicable 
provisions under Title II with regard to BIAS providers.
    12. We anticipate as well that Title II authority, such as that 
provided in section 201 of the Act, will be important in addressing 
national security and law enforcement concerns involving internet 
Points of Presence (PoPs), which are usually located within data 
centers, as those relate to the provision of BIAS. Today, internet 
service providers (ISPs) provide BIAS through PoPs. There are serious 
national security and law enforcement risks associated with PoPs that 
are owned or operated by entities that present threats to national 
security and law enforcement interests and potential harms related to 
the services provided by such entities. For instance, in the China 
Telecom Americas Order on Revocation and Termination, the Commission 
addressed concerns that China Telecom (Americas) Corporation's (CTA) 
PoPs in the United States ``are highly relevant to the national 
security and law enforcement risks associated with CTA'' and that 
``CTA's PoPs in the United States provide CTA with the capability to 
misroute traffic and, in so doing, access and/or manipulate that 
traffic.'' The Commission also stated that ``CTA, like any similarly 
situated provider, can have both physical and remote access to its 
customers' equipment needed to provide such services,'' and ``[t]his 
physical access to customers' equipment would allow CTA to monitor and 
record sensitive information.'' The Commission concluded that CTA's 
provision of services pursuant to its section 214 authority, ``whether 
offered individually or as part of a suite of services--combined with 
CTA's physical presence in the United States, CTA's ultimate ownership 
and control by the Chinese government, and CTA's relationship with its 
indirect parent [China Telecommunications Corporation], which itself 
maintains a physical presence in the United States--present 
unacceptable national security and law enforcement risks to the United 
States,'' and it reached similar conclusions in the other proceedings. 
In the China Telecom Americas Order on Revocation and Termination, the 
Commission stated that ``[i]n cases where [China Telecom Americas' 
(CTA's)] PoPs reside in IX points, CTA can potentially access and/or 
manipulate data where it is on the preferred path for U.S. customer 
traffic, through its services provided pursuant to section 214 
authority and those services not authorized under section 214 
authority.'' The Commission also noted that ``[t]he Executive Branch 
agencies refer to public reports that CTA's network misrouted large 
amounts of information and communications traffic over long periods, 
often several months, sometimes involving U.S. government traffic.'' 
Notably, CTA's website indicates that the company operates 23 PoPs in 
the United States and offers a number of services that may be available 
in the United States, including colocation, broadband, internet access, 
IP transit, and data center services. We conclude that the same 
national security and law enforcement concerns identified in that 
revocation proceeding are at least as likely to be present in the 
context of BIAS offerings when used to route or exchange BIAS traffic. 
In the China

[[Page 45408]]

Telecom Americas Order on Revocation and Termination, the Commission 
concluded that CTA's provision of services pursuant to its section 214 
authority, ``whether offered individually or as part of a suite of 
services--combined with CTA's physical presence in the United States, 
CTA's ultimate ownership and control by the Chinese government, and 
CTA's relationship with its indirect parent [China Telecommunications 
Corporation], which itself maintains a physical presence in the United 
States--present unacceptable national security and law enforcement 
risks to the United States.'' We expect that reclassification of BIAS 
under Title II will enable the Commission to exercise authority when 
necessary to prohibit a BIAS provider from exchanging internet traffic 
with third parties that present threats to U.S. national security and 
law enforcement, such as CTA.
    13. This document's reclassification decision also will provide the 
Commission with broader authority under Title II to safeguard BIAS 
providers, networks, and infrastructure from equipment and services 
that pose national security threats. The Commission has undertaken 
significant efforts to improve supply chain security pursuant to its 
universal service authority in section 254 of the Act, its authority to 
regulate equipment in sections 302 and 303 of the Act, and new mandates 
established by Congress through the Secure and Trusted Communications 
Networks Act of 2019, as amended, and the Secure Equipment Act of 2021. 
In particular, the Commission has taken action to: prohibit the use of 
universal service fund (USF) support to purchase or obtain any 
equipment or services produced or provided by companies posing a 
national security threat; prohibit the use of Federal subsidies 
administered by the Commission and used for capital expenditures to 
provide advanced communications service to purchase, rent, lease, or 
otherwise obtain such equipment or services; create and maintain a list 
of communications equipment and services that pose an unacceptable risk 
to the national security (``covered equipment and services''); 
administer the Secure and Trusted Communications Networks Reimbursement 
Program (Reimbursement Program) to reimburse the costs providers incur 
to remove, replace, and dispose of covered Huawei and ZTE equipment and 
services from their networks; and prohibit the authorization of 
equipment that poses a threat and the marketing and importation of such 
equipment in the United States. Reclassification furthers these efforts 
by enhancing the Commission's ability to address issues raised by the 
use in our networks of equipment and services that pose a threat to 
national security and law enforcement. Notably, the Commission stated 
that the definition of ``provider of advanced communication services'' 
for purposes of the Reimbursement Program did not limit program 
eligibility to providers who offer service to end users, and included 
intermediate providers that carry traffic for other carriers only and 
do not originate or terminate traffic.
    14. We are unpersuaded by commenters who argue that Title II 
classification is unjustified for national security purposes because 
they question this policy rationale, argue that market forces are 
sufficient to address national security risks, or contend that 
potential national security regulations under Title II would be costly 
or burdensome for BIAS providers. The Commission's national security 
concerns are not new. As evidenced by the discussion above, the 
Commission has engaged in numerous and ongoing actions to address these 
risks. The Nation's communications networks are critical 
infrastructure, and therefore too important to leave entirely to market 
forces that may sometimes, but not always, align with necessary 
national security measures. Arguments regarding costs and burdens are 
unpersuasive given that, at this point, they represent only speculation 
about hypothetical costs and burdens. To the extent there are costs and 
burdens associated with any ultimate action the Commission may 
undertake, we anticipate that the benefits to national security will 
outweigh those costs.
    15. We also disagree with those commenters that reject the national 
security justification for reclassification on the grounds that there 
are no gaps that need to be filled or problems that need to be solved 
by the Commission, that argue that the Commission has a marginal role 
in protecting national security, or that contend Commission action 
would undermine the existing whole-of-government national security 
approach. These commenters fail to recognize, as noted above, that 
Congress made clear, when creating the Commission, that one of its 
enumerated purposes was to further the ``national defense.'' 
Additionally, these commenters ignore the Commission's significant 
contributions to the whole-of-government approach to national security. 
In addition to the regulatory actions discussed above, the Commission 
is actively engaged in several Federal interagency working groups and 
policy committees that address a diverse range of national security 
topics, including cybersecurity, critical infrastructure resilience, 
emergency preparedness and response, supply chain risk management, and 
space systems cybersecurity. Commission staff receive classified 
briefings from the Intelligence Community on threats to the 
communications sector, exchange relevant information with Federal 
partners, and coordinate with law enforcement agencies to support 
various national security initiatives. The Commission also supports 
National Special Security Events (NSSE) and Security Event Assessment 
Rating (SEAR) 1 events and conducts investigations to determine if 
communications are being transmitted lawfully, if spectrum is being 
used appropriately, or if radio-frequency devices are authorized for 
operation. As a result of the Commission's collaborative efforts, we 
have learned that there are segments of the communications sector that 
are not subject to sufficient Federal regulatory oversight, including 
BIAS, due to the RIF Order's misclassification of the service in 2017. 
This lack of sufficient oversight allows security vulnerabilities to go 
undiscovered--and unaddressed--which can produce negative consequences 
for the communications sector, as well as other critical infrastructure 
sectors. As articulated above, reclassification directly supports the 
Commission's role in cross-government efforts and helps fill gaps in 
oversight by enabling the Commission to take regulatory actions to 
address national security risks.
    16. We are also unpersuaded by arguments that reclassification is 
unjustified because we can address certain harms without such change. 
Some commenters argue that it would be sufficient to prevent carriers 
already subject to Title II from interconnecting with any entities that 
pose national security risks, whether or not those entities are 
themselves subject to Title II. We find that merely taking this action 
would fall far short of what is necessary to address our national 
security concerns, especially given the vastly diminished role of Title 
II voice and other traditional telecommunications services in today's 
communications marketplace. A prohibition on only regulated carriers--
meaning those currently subject to Title II--from interconnecting with 
entities that pose a national security threat would not reach

[[Page 45409]]

providers of BIAS without reclassification. We find that it is instead 
necessary to directly address the national security risks associated 
with the provision of BIAS with the enhanced authorities available 
under Title II. The reclassification of BIAS is an important step 
toward closing the national security loopholes that exist within the 
communications sector, especially in broadband networks.
    17. Finally, we reject arguments of commenters that oppose 
reclassification as unnecessary because the Commission's existing 
authority is sufficient to address national security concerns for which 
Congress has authorized the Commission to act; because the Commission 
does not have statutory authority to address national security concerns 
involving BIAS, broadband transmission services, or certain network 
infrastructure; or because Title II does not provide the Commission 
with authority to address national security. The Commission relies on 
multiple statutory provisions when taking action to protect national 
security, but Title II of the Communications Act includes some of the 
most important authorities and vests the Commission with a broad grant 
of rulemaking authority to ``prescribe such rules and regulations as 
may be necessary in the public interest to carry out the provisions of 
this chapter.'' Indeed, we have articulated several sources of 
authority above. As we do not adopt any new national-security-focused 
rules in the Order, we need not articulate with specificity each Title 
II provision that would provide a source of authority for potential 
action that the Commission may take in the future. Similarly, we are 
not persuaded that using Title II authority for national security 
purposes would violate Article II of the Constitution. As the U.S. 
Court of Appeals for the Fifth Circuit recently held, the Commission's 
exercise of authority to address national security threats to 
communications networks does not violate the separation of powers or 
infringe upon the President's constitutional authority to conduct 
foreign affairs.
3. Promoting Cybersecurity
    18. As with national security, the Commission has an important role 
in addressing cybersecurity in communications networks that is inherent 
in its establishment ``for the purpose of the national defense.'' The 
National Cybersecurity Strategy highlights the importance of protecting 
critical infrastructure as more of our ``essential systems'' move 
online. The expanding cyber threat landscape is ``making cyberattacks 
inherently more destructive and impactful to our daily lives.'' This 
trend is especially problematic because ``malicious cyber activity has 
evolved from nuisance defacement, to espionage and intellectual 
property theft, to damaging attacks against critical infrastructure, to 
ransomware attacks and cyber-enabled influence campaigns.'' Further, 
``offensive hacking tools and services, including foreign commercial 
spyware, are now widely accessible . . . [to] organized criminal 
syndicates.'' In addition, ``China, Russia, Iran, North Korea, and 
other autocratic states . . . are aggressively using advanced cyber 
capabilities'' to pursue economic and military objectives. These 
malicious cyber activities threaten ``the national security, public 
safety, and economic prosperity of the United States and its allies and 
partners.''
    19. The communications sector is squarely in the crosshairs of 
malicious cyber actors, who have targeted communications providers with 
ransomware attacks and have exploited vulnerabilities in communications 
networks to carry out cyberattacks against other critical 
infrastructure. For example, the 2023 Annual Threat Assessment of the 
U.S. Intelligence Community highlights the cyber threats to U.S. 
communications networks and states that ``China's cyber espionage 
operations have included compromising telecommunications firms.'' More 
recently, Federal Bureau of Investigation (FBI) Director Christopher 
Wray highlighted ``China's increasing buildout of offensive weapons 
within our critical infrastructure,'' which has enabled ``persistent 
PRC access'' to U.S. ``critical telecommunications, energy, water, and 
other infrastructure.''
    20. The Commission actively supports the U.S. Government's efforts 
to protect critical infrastructure by participating in cybersecurity 
planning, coordination, and response activities. However, the 
classification of BIAS as a Title I information service has limited the 
regulatory actions that the Commission could take to address cyber 
incidents impacting some aspects of the communications sector, as well 
as other critical infrastructure sectors. This is not a hypothetical 
concern. As NTIA states on behalf of the Executive Branch, 
``[r]eclassifying BIAS is necessary to ensure that the Commission has 
the authority it needs to advance national security objectives.'' In 
recent years, Federal agencies have requested the Commission's 
assistance with mitigating specific risks and vulnerabilities in 
broadband networks that foreign adversaries could exploit to carry out 
cyberattacks against the United States. The lack of Title II authority 
over BIAS has essentially precluded the Commission from taking 
regulatory action to directly address these concerns. We note, by way 
of example, recent reports of efforts of China-based hackers to target 
Philippines government officials by carrying out cyberattacks over 
broadband networks in that country. We find that reclassifying BIAS as 
a Title II service will help to fill this gap by enhancing the 
Commission's ability to protect U.S. communications networks and 
infrastructure from cyberattacks and to ensure that communications 
devices and equipment do not pose security risks to other critical 
infrastructure sectors.
    21. The reclassification of BIAS significantly bolsters the 
Commission's existing authority to take regulatory actions to address 
cybersecurity risks and vulnerabilities in broadband networks. We agree 
with NTIA that reclassification will enable the Commission to better 
``protect our networks from malicious actors . . . [by] leverag[ing] 
the appropriate tools at its disposal, including the relevant Title II 
provisions.'' We agree with commenters that reclassification ``provides 
multiple new authorities for the Commission to engage on 
cybersecurity'' and take regulatory actions to ``study cybersecurity 
needs and impose minimum standards on BIAS providers.'' For example, 
the Commission could build on existing efforts to require BIAS 
providers to implement cybersecurity plans and risk management plans to 
protect their networks from malicious cyber activity. This enhanced 
authority over BIAS could also allow the Commission to obtain greater 
situational awareness by working in coordination on cyber incident 
reporting with the Cybersecurity & Infrastructure Security Agency 
(CISA) as it implements the Cyber Incident Reporting for Critical 
Infrastructure Act of 2022 (CIRCIA). It also provides the Commission 
with additional regulatory tools to ensure network and service 
reliability and better support effective 911 and emergency preparedness 
and response efforts.
    22. Reclassification also places the Commission in a stronger 
position to address vulnerabilities threatening the security and 
integrity of the Border Gateway Protocol (BGP), which impacts ``the 
transmission of data from email, e-commerce, and bank transactions to 
interconnected Voice-over-Internet Protocol (VoIP) and 9-1-1 calls.'' 
For example, the Commission could

[[Page 45410]]

consider requiring service providers to deploy solutions to address BGP 
vulnerabilities, such as BGP hijacks. The agency could also consider 
establishing cybersecurity requirements for BGP, including ``security 
features to ensure trust in the information that it is used to 
exchange,'' which could prevent bad actors from ``deliberately 
falsify[ing] BGP reachability information to redirect traffic to itself 
or through a specific third-party network, and prevent that traffic 
from reaching its intended recipient.'' We note, however, that this 
filing does not oppose the reclassification of BIAS under Title II, the 
issue being addressed in the Order. Similarly, the Commission could 
more effectively address security threats related to the Domain Name 
System (DNS), which enables domain names to resolve to the correct IP 
addresses, and other naming protocols when used by BIAS providers to 
facilitate the operation of BIAS.
    23. Some commenters argue that reclassification is unnecessary 
because the Commission's existing authority is sufficient to address 
cybersecurity risks in areas where Congress has authorized the 
Commission to act. Other commenters argue that the classification of 
BIAS is irrelevant because the Commission does not have statutory 
authority to address cybersecurity matters. But it is well established 
that the Commission may--indeed must--take security and public safety 
considerations into account in its public interest determinations under 
Title II. We disagree with these commenters because the classification 
of BIAS under Title I created a loophole that largely precluded the 
Commission from taking regulatory actions to address cyber risks to 
BIAS providers and vulnerabilities in broadband networks. For example, 
under the Title I classification, the Commission has limited authority 
to require providers of non-Title II services (e.g., BIAS providers) to 
adopt cybersecurity standards or performance goals, report information 
about cyber incidents, or take defensive measures to protect 
communications networks and critical infrastructure. The 
reclassification of BIAS under Title II allows the Commission to use a 
broader range of regulatory tools by reestablishing the Commission's 
legal jurisdiction over broadband services, providers, and networks. 
This change is necessary to ensure the Commission can effectively 
address the cyber threats to the communications sector.
    24. We also disagree with those commenters that argue that the 
Commission should not take action because it lacks the expertise and 
resources to implement a Title II regulatory regime in the area of 
cybersecurity and because other agencies are better equipped to address 
cybersecurity risks and vulnerabilities. For example, Verizon points 
out that CISA is ``the federal leader for cyber and physical 
infrastructure security'' and claims that the Commission plays ``only a 
supporting role.'' NCTA--The Internet & Television Association (NCTA) 
agrees, based on the fact that CISA ``issue[s] administrative subpoenas 
to critical infrastructure entities, which includes broadband 
providers, to obtain information necessary to identify and notify 
entities of vulnerabilities in their system.'' We recognize and 
appreciate CISA's leadership in protecting critical infrastructure--
including communications networks--from malicious cyber activity. The 
Commission works closely with CISA and other Federal agencies in a 
collaborative manner to address risks and vulnerabilities impacting the 
communications sector. Chairwoman Rosenworcel currently serves as Chair 
of the Cybersecurity Forum for Independent and Executive Branch 
Regulators, ``a federal interagency group that shares information and 
expertise to enhance the cybersecurity of America's critical 
infrastructure.'' Further, the Commission is the regulatory agency for 
communications and, as such, has access to regulatory authorities and 
investigative tools that Congress has not granted to other agencies. 
For example, the Commission recently adopted a cybersecurity labeling 
program for Internet of Things (IoT) devices and products, and proposed 
a pilot program to help schools and libraries improve their 
cybersecurity efforts through the USF. In addition, the Commission 
regularly investigates cyber intrusions and hacks related to the breach 
of regulatorily protected consumer data in the possession of common 
carriers, cable providers, and satellite providers. For example, cyber 
breaches may involve unauthorized access to personally identifiable 
information (PII) or customer proprietary network information (CPNI). 
Likewise, our data protection investigations frequently involve 
investigating and assessing whether the regulated entities had 
reasonable cybersecurity protections in place to protect the networks 
on which sensitive data are housed. The reclassification of BIAS will 
enable the Commission to more effectively fulfill its responsibilities, 
including those identified in PPD-21, within the existing frameworks 
that support the whole-of-government approach to cybersecurity.
    25. Even though the Commission, under Title II, may not be able to 
address all significant cyber vulnerabilities, we find that the 
availability of that authority meaningfully enhances our ability to 
address significant cybersecurity threats. Given the interconnected 
nature of communications networks, any efforts to reduce the number of 
vulnerabilities and threat vectors that can be targeted by malicious 
cyber actors could provide substantial benefits to the larger 
communications sector. A recent cyberattack by Russian hackers against 
Kyivstar, Ukraine's largest telecommunications provider, ``knocked out 
services'' for 24 million users and ``completely destroyed the core'' 
of the company's network. This incident demonstrates how cyberattacks 
targeting communications service providers--including BIAS providers--
can have disastrous impacts by damaging network infrastructure and 
causing widespread service outages. The Electronic Privacy Information 
Center (EPIC) asserts that ``immediate regulatory action must be taken 
to compel ISPs to shore up their cybersecurity practices to better 
protect consumers,'' and argues that Title II reclassification of BIAS 
would empower the Commission to take further action. We agree with EPIC 
and conclude that reclassification enhances the Commission's ability to 
require BIAS providers to implement cybersecurity practices and take 
other actions to protect the confidentiality and integrity of 
information on the traffic that [each provider] stores or transmits.
    26. Similar to certain arguments made opposing reclassification for 
national security purposes, commenters opposing reclassification for 
cybersecurity purposes argue that: the Commission has adequate 
authority to address cybersecurity issues under Title I; 
reclassification will be costly, burdensome, and too rigid for a 
dynamic threat landscape; and industry already addresses cybersecurity 
risks without regulatory mandates. We find that the Commission has an 
essential role in promoting measures that ``currently seem to best 
protect consumers from breaches and other cyber incidents.'' As 
described above, and consistent with our conclusions on national 
security matters generally, reclassification will provide additional 
authority to act when necessary and in coordination with our Federal 
partners to address cybersecurity in the communications sector. 
Although the adoption of specific cybersecurity

[[Page 45411]]

requirements is beyond the scope of this proceeding, we intend for any 
future proposed action to provide regulatory flexibility, ``leverage 
existing cybersecurity frameworks,'' encourage ``public-private 
collaboration,'' and be designed to minimize the ``cost of 
implementation.''
4. Safeguarding Public Safety
    27. Reclassifying BIAS as a telecommunications service enables the 
Commission to advance several public safety initiatives. Congress 
created the Commission, among other reasons, ``for the purpose of 
promoting safety of life and property through the use of wire and radio 
communication,'' and as the Commission recognized in the RIF Remand 
Order (86 FR 994 (Jan. 7, 2021)), ``[a]dvancing public safety is one of 
our fundamental obligations.'' The Mozilla court explained that when 
```Congress has given an agency the responsibility to regulate a market 
such as the telecommunications industry that it has repeatedly deemed 
important to protecting public safety,' then the agency's decisions 
`must take into account its duty to protect the public.' '' The 
Commission's responsibility to address public safety is becoming 
increasingly important as the severity and frequency of natural 
disasters continue to rise. Reclassification enhances the Commission's 
jurisdiction over BIAS providers, which, in combination with our other 
statutory authority, will allow us to ensure BIAS meets the needs of 
public safety entities and individuals when they use those services for 
public safety purposes.
    28. Reclassification will empower the Commission to more 
effectively support public safety officials' use of BIAS for public 
safety purposes. Public safety officials' reliance on broadband service 
has become integral to their essential functions and services, even 
aside from their use of enterprise-level broadband services, including 
how they communicate with each other and how they convey information to 
and receive information from the public. Public safety entities and 
first responders often rely on retail broadband services to communicate 
during emergency situations. Increasingly, public safety entities rely 
on BIAS to access various databases, share data with emergency 
responders, and stream video into 911 and emergency operations centers. 
Public safety officials also rely on BIAS outside the emergency 
context, including relying on individuals' residential security systems 
that use BIAS and programs that are alternatives to incarceration, 
which require individuals to check in with supervising officers 
remotely, wear electronic location monitoring devices, or use 
continuous alcohol monitoring devices. In addition, public safety 
officials use services accessible over the top (OTT) of broadband 
connections, such as social media, to communicate important and timely 
information to the public and to gain valuable information from the 
public and build on-the-ground situational awareness. For example, 
during the recent 911 outage that impacted several western states, 
public safety officials used social media ``to inform the public of the 
issue and to provide alternate means of contacting emergency 
services.'' Santa Clara describes the essential role BIAS also plays in 
public safety officials' ability to carry out their daily, non-
emergency functions, including its importance in the functioning of its 
emergency communications and operations protocols. Santa Clara also 
describes the importance of redundancies in its emergency 
communications and operations systems, and that many of these systems 
rely on BIAS, outside of its enterprise systems. Public safety entities 
benefit as well when they rely on enterprise services, which often flow 
over the same facilities as mass-market retail services. For example, 
Emergency Services Internet (ESInet) is a managed UP network that is 
used for emergency services communications and which may be constructed 
from a mix of dedicated and shared facilities. ESInets can be realized 
in several ways with one example using the Multi-Protocol Label 
Switching (MPLS) standard used by many BIAS and transit providers' 
networks for traffic engineering and sharing facilities with other 
traffic. Reclassification gives the Commission additional jurisdiction 
to advance the existing uses of BIAS to support public safety 
operations and communications by, for example, taking regulatory 
actions to improve the effectiveness of emergency alerting and 911 
communications. Given how crucial BIAS is to the protection of public 
safety and that reclassification provides the Commission with the 
ability to ensure that BIAS is reliable and secure during emergencies, 
we disagree with those commenters who argue that reclassification will 
not enhance public safety communications on the basis that public 
safety entities heavily rely on enterprise-level dedicated networks 
that fall outside of the scope of reclassification.
    29. BIAS also plays an increasingly important role in allowing the 
public to communicate with first responders during emergency 
situations. In the RIF Remand Order, the Commission noted that retail 
broadband services are used to translate communications with 911 
callers and patients in the field and to deliver critical information 
about 911 callers that is not delivered through the traditional 911 
network. The Commission has undertaken various efforts in recent years 
to improve how the public reaches and shares information with emergency 
service providers. Title II classification of BIAS supports these 
current and future efforts. For example, reclassification enhances the 
Commission's jurisdiction to improve the flow of voice communications, 
photos, videos, text messages, real-time text (RTT), and other types of 
communications from the public to emergency service providers through 
Next Generation 911 or Wi-Fi calling.
    30. The public relies on BIAS to easily access public safety 
resources and information. Commenters who support reclassification and 
petitioners for reconsideration of the RIF Remand Order note that 
social media is increasingly used as an important resource by the 
public to access information about emergencies and other public safety 
incidents. We therefore disagree with commenters who argue that there 
is no evidence that the Commission's lack of regulatory authority over 
BIAS poses public safety risks. Similar to the arguments made by 
commenters who argue that reclassification will not affect 
communications networks used by public safety officials, this argument 
ignores that both public safety officials and the public increasingly 
rely on BIAS. Indeed, BIAS has become for many individuals the primary 
way to access critical public safety services, without which there 
would be no other mode of communication. Reclassification enables the 
Commission to ensure that communications are secure and reliable in 
times of emergency. We agree with the Communications Workers of America 
(CWA) that ``[w]hile many providers have made strides in improving 
service quality and reducing outages, voluntary commitments are clearly 
not enough.'' Furthermore, the fact that many states have implemented 
their own laws to ensure public safety communications are safeguarded 
demonstrates the gap that has existed since the repeal of Title II 
classification of BIAS. We observe that the public also relies on BIAS 
for public safety communications that occur outside of emergencies, 
including for telemedicine; residential safety and security systems; 
and in-home

[[Page 45412]]

monitoring of individuals who are elderly, disabled, or otherwise able 
to benefit from such services.
    31. BIAS is essential when used by individuals with disabilities to 
communicate with public safety services, and the Commission has taken 
several steps to improve access to IP-enabled 911 communications for 
people with disabilities. For example, the Department of Health and 
Human Services recently announced that the 988 Suicide & Crisis 
Lifeline will provide direct video calling ASL services for people who 
are deaf and hard of hearing, as part of ongoing efforts to expand 
accessibility to behavioral health care for underserved communities. 
This will allow an ASL user in crisis to communicate directly with a 
counselor in ASL. Reclassification enhances our existing authority to 
ensure these communications are not interrupted or degraded by, for 
example, giving the Commission the jurisdiction necessary to ``develop 
minimum standards of service and enforcement mechanisms that affect 
people with disabilities.'' Likewise, reclassification ``provide[s] the 
FCC with the tools needed, for example, to promote broadband in rural 
areas lacking sufficient access to BIAS where there is no substitute 
for copper wires which carry 911, closed captioning, and TTY 
services.''
    32. Reclassification will enhance the Commission's ability to 
better protect public safety communications. For example, Title II 
positions the Commission to more fully examine and investigate 
incidents involving BIAS providers that are alleged to have violated 
the Commission's rules, including those against throttling or blocking. 
In addition to holding any particular violative action to account, 
enforcement proceedings would also enable the Commission to prevent or 
mitigate future threats to BIAS by using data and information gathered 
as a result of those proceedings. Reclassification will also enable the 
Commission to make the Nation's alerting and warning capabilities more 
effective and resilient by, for example, adopting rules requiring BIAS 
providers to transmit emergency alerts to their subscribers. Further, 
given the expanding ways in which individuals and public safety 
officials rely on BIAS to keep themselves and their homes safe, Title 
II will enable the Commission to ensure that BIAS providers protect and 
securely transmit the sensitive information to which they are privy 
pursuant to section 222, which requires service providers to protect 
customer information. Thus, reclassification enables the Commission to 
take a wider range of regulatory actions to ensure the public can 
reliably and securely access life-saving public safety resources and 
information using BIAS.
    33. We find that the ability of the Commission to adopt ex ante 
regulations will provide better public safety protections than the ex 
post enforcement framework established by the RIF Order. We agree with 
Santa Clara and INCOMPAS, which, in their Petitions for Reconsideration 
of the RIF Remand Order, criticize the RIF Remand Order's analysis of 
the record at that time in light of these observations, including the 
RIF Remand Order's minimization of the opportunity for harm to public 
safety in the absence of reclassification and the open internet conduct 
rules as well as its acceptance of industry's voluntary commitments to 
abide by the principles underlying the open internet rules. 
Reclassification and the conduct rules enable the Commission ``to deal 
with public safety issues before a public safety situation arises--not 
afterwards, as the RIF Remand Order suggests,'' and do not force the 
Commission to rely on voluntary industry commitments to protect public 
safety.
    34. Some commenters assert that reclassification will stymie 
innovation and reduce incentives for investment, which in turn, does 
not serve public safety goals. Both INCOMPAS and Santa Clara petitioned 
for reconsideration of the RIF Remand Order in large part on this very 
notion, pointing out that the asserted benefits of increased investment 
and innovation under Title I was unsupported by the record and that 
there was evidence to the contrary. We agree with Public Knowledge in 
that ``[n]owhere has the Commission ever found that the nebulous and 
unsubstantiated benefits of deregulation outweigh the specific benefits 
of ensuring that public safety responders can communicate reliably with 
each other and with the public in times of crisis.'' Linking increases 
or decreases in investment and innovation with reclassification is not 
supported by the available evidence, as we discuss in more detail 
below.
5. Monitoring Network Resiliency and Reliability
    35. The Commission also plays a critical role in monitoring the 
resiliency and reliability of the Nation's communications networks and 
helping to ensure that these networks are in fact resilient and 
reliable. PPD-21 defines ``resilience'' as ``the ability to prepare for 
and adapt to changing conditions and withstand and recover rapidly from 
disruptions . . . [it] includes the ability to withstand and recover 
from deliberate attacks, accidents, or naturally occurring threats or 
incidents.'' The Nation's networks are critical lifelines for those in 
need during disasters and other emergency situations. Recent events, 
including hurricanes, wildfires, tornadoes, earthquakes, and severe 
winter storms, demonstrate how communications infrastructure remains 
susceptible to disruption. As broadband services become more 
widespread, consumers increasingly rely on these connections. As of 
February 2021, Pew Research estimates that 77% of adults in the United 
States have high-speed broadband service at home. Smartphone ownership 
among adults in the US is now estimated to be at 85%. The Commission 
has taken actions consistent with its existing authority to improve the 
reliability and resiliency of the Nation's communications networks so 
that the public can communicate, especially during emergencies. 
However, those efforts have had to largely focus on the networks' 
provision of voice telephony under Title II. This document's action to 
reclassify BIAS under Title II will enable the Commission to build upon 
these efforts by taking more effective regulatory actions to protect 
the resiliency and reliability of our broadband networks and 
infrastructure.
    36. In particular, the Commission plays a vital role in ensuring 
that the Nation's communications networks are resilient and reliable. 
For example, the Commission ``monitors and analyzes communications 
network outages[,] . . . [takes actions] to help prevent and mitigate 
outages, and where necessary, assist[s] response and recovery 
activities.'' During emergencies, the Commission ``collects information 
on the operational status of communications infrastructure to support 
government disaster assistance efforts and to monitor restoration and 
recovery.'' One of the principal benefits of reclassification is to 
enable all public safety officials to better assess the operational 
status of broadband networks for dissemination of emergency information 
and/or to better assess where support is needed. Under the Commission's 
Network Outage Reporting System (NORS), qualifying service providers 
are required to report to the Commission network outages that satisfy 
certain criteria.
    37. As Free Press points out, ``because NORS is limited to voice 
service outages, `the Commission has historically lacked reliable 
outage information for today's modern,

[[Page 45413]]

essential broadband networks.' '' Reclassification also enhances the 
agency's ability to gain better visibility over the performance of 
broadband networks and also to completely and accurately determine the 
scope and causes of outages to these networks. Closing this reporting 
gap for outages could afford the Commission and public safety officials 
with more consistent and reliable data to better track changes in 
network reliability, identify trends, pinpoint possible improvements 
and best practices, and disseminate actionable information. New outage 
reporting requirements for BIAS providers could also provide the 
Commission with better situational awareness for major internet outages 
affecting first responders, 911 services, and impacted populations that 
are not currently captured by NORS data. Finally, reclassification 
supports the Commission's authority to expand the scope of NORS by 
requiring BIAS providers, like Title II-regulated voice service 
providers, to submit outage reports in response to service incidents 
that cause outages or the degradation of communications services, such 
as cybersecurity breaches, wire cuts, infrastructure damages from 
natural disaster, and operator errors or misconfigurations.
    38. The Commission also ``oversees and monitors industry efforts to 
strengthen network resiliency,'' including through the recently adopted 
Mandatory Disaster Response Initiative. Moreover, the Commission 
adopted new rules, ``to require enumerated service providers (cable 
communications, wireline, wireless, and interconnected Voice over 
Internet Protocol (VoIP) providers) . . . to report on their 
infrastructure status during emergencies and crises in the Disaster 
Information Reporting System (DIRS) when activated and to submit a 
final report to the Commission within 24 hours of DIRS deactivation.'' 
Reclassification bolsters the Commission's authority to require BIAS 
providers to participate in DIRS. In addition, the Commission endeavors 
to ``identify and reduce risks to the reliability of the nation's 
communications network[s],'' including by working with the 
Communications Security Reliability and Interoperability Council 
(CSRIC).
    39. Reclassifying BIAS as a telecommunications service will 
significantly enhance the Commission's ability to protect critical 
infrastructure by taking actions to address threats and vulnerabilities 
to communications networks. Public Knowledge agrees that ``[w]ithout 
Title II authority, the Commission cannot impose regulations to meet 
the need for resilience and reliability as more and more critical 
traffic passes through IP networks.'' This change in policy will enable 
the Commission to set goals and objectives that foster resilience and 
to implement risk management directives on a wider basis in order to 
make our broadband networks more resilient and reliable, and thus more 
secure. We also disagree with those commenters who argue against 
reclassification by contending that outage reporting targeted to BIAS 
networks will not serve the public interest or that there are 
alternative sources of authority for outage reporting. The Commission 
is considering in a separate proceeding the extent to which outage 
reporting requirements should be placed on BIAS providers and we 
anticipate that having Title II as an additional source of authority 
will support that evaluation.
    40. We also are not persuaded by other arguments that certain 
parties raise regarding network resilience and reliability that are 
consistent with their comments regarding national security. Some 
commenters argue reclassification is not necessary to ensure the 
resiliency and reliability of the Nation's communications networks, 
that market-driven incentives motivate broadband providers to make 
significant investments to increase the resiliency and reliability of 
their networks, or that the Commission has only a limited role to play 
on resilience and reliability issues. We agree with AARP and Next 
Century Cities, however, that reclassification is necessary to provide 
the Commission with sufficient authority to address network resiliency 
for critical infrastructure, which is too important for the Commission 
to be forced to rely upon mere voluntary measures and alleged market-
driven incentives. As described above, and consistent with our 
conclusions on national security matters generally, we find that the 
Commission has an essential role on resilience and reliability issues, 
working in coordination with its Federal partners. Reclassification 
will allow for the direct network monitoring of the Nation's broadband 
internet networks and provide a robust regulatory platform so that all 
BIAS providers maintain the highest levels of business continuity when 
incidents occur. We find that reclassification will support the 
Commission's efforts to protect the public by ensuring that more 
reliable and resilient networks are in use, including by developing 
voluntary frameworks and policies when practical, and compelling 
enforceable compliance when needed.
    41. Commenters opposing reclassification also argue that under 
Title I classification, broadband networks have provided robust 
internet service despite unprecedented levels of demand during the 
COVID-19 pandemic. We find these arguments unpersuasive. As more 
critical functions rely on BIAS, it is imperative for the Commission to 
have authority to address resiliency issues involving broadband 
networks to the same degree that it has for traditional voice networks. 
Further, we disagree with those commenters that contend that these 
types of reporting, monitoring, and regulatory requirements would 
likely impose significant new costs on BIAS providers and potentially 
stifle investment and broadband deployment.
    42. In conclusion, the reclassification of BIAS will secure the 
Commission's authority to, as necessary, implement requirements for 
network upgrades and changes, adopt rules relating to recovery from 
network outages, and improve our incident investigation and enforcement 
authority to mitigate network threats and vulnerabilities. 
Reclassification also enables the Commission to create more stability 
and predictability on how providers should address disasters and 
emergency situations. Moreover, reclassifying broadband as a 
telecommunications service allows the Commission to address 
identified--and evolving--threats and vulnerabilities in the BIAS 
industry, as some BIAS providers may not have sufficient incentives to 
protect the traffic traversing their networks without such regulation. 
Thus, reclassification would allow the Commission, for example, to 
require BIAS providers to identify and reduce harmful activities 
occurring across their infrastructure. These measures will be taken in 
support of a whole-of-government approach by taking regulatory actions 
to enhance network reliability and resiliency in order to better 
protect all of our Nation's networks.
6. Protecting Consumers' Privacy and Data Security
    43. We find that classifying BIAS as a telecommunications service 
will support the Commission's efforts to protect consumers' privacy and 
data security. Section 222 of the Act governs telecommunications 
carriers' use, disclosure, and provision of access to information 
obtained from their customers, other telecommunication carriers, and 
equipment manufacturers. It imposes a general duty on every 
telecommunications carrier to protect

[[Page 45414]]

the confidentiality of proprietary information of its customers, other 
telecommunication carriers, and equipment manufacturers, and imposes 
heightened restrictions on carriers' use, disclosure, or provision of 
access to customers' customer proprietary network information (CPNI)--
including customer location information--without consent. CPNI is 
defined as ``(A) information that relates to the quantity, technical 
configuration, type, destination, location, and amount of use of a 
telecommunications service subscribed to by any customer of a 
telecommunications carrier, and that is made available to the carrier 
by the customer solely by virtue of the carrier-customer relationship; 
and (B) information contained in the bills pertaining to telephone 
exchange service or telephone toll service received by a customer of a 
carrier.''
    44. Returning BIAS to its telecommunications service classification 
will bring BIAS providers back under the section 222 privacy and data 
security framework, restoring those protections for consumers and 
yielding substantial public interest benefits. In her separate remarks 
on the 2021 Federal Trade Commission (FTC) Staff Report, Chair Lina 
Khan noted that the FCC ``has the clearest legal authority and 
expertise to fully oversee internet service providers,'' a view 
supported by a number of commenters, who assert that the Commission's 
specific expertise to regulate privacy matters is needed. We observe 
that the Commission's privacy authority under Title II is not limited 
to CPNI. Section 222(a) also imposes obligations, which we enforce, on 
carriers' practices with regard to protection of non-CPNI customer 
proprietary information and personally identifiable information (PII), 
and section 201(b)'s prohibition on practices that are unjust or 
unreasonable also provides authority over privacy practices. We also 
find that because section 222 places an obligation on 
telecommunications carriers to protect the confidentiality of the 
proprietary information of and relating to other telecommunication 
carriers (including resellers) and equipment manufacturers, our 
classification of BIAS as a telecommunications service will protect 
information concerning entities that interact with BIAS providers.
7. Supporting Access to Broadband Internet Access Service
    45. Reclassifying BIAS as a telecommunications service under Title 
II will support the Commission's multifaceted efforts to support access 
to BIAS in three ways. First, such authority will improve the 
Commission's ability to foster investment in and deployment of wireline 
and wireless infrastructure and to promote competition for, and access 
to, BIAS for consumers by restoring to BIAS-only providers statutory 
protections for pole attachments that providers of cable and 
telecommunications services receive. Second, reclassification 
facilitates our ability to ensure access to BIAS by enabling the 
Commission to regulate BIAS-only providers that serve multi-tenant 
environments to ensure they do not engage in unfair, unreasonable, and 
anticompetitive practices, such as exclusivity contracts. Finally, 
authority under Title II will put the Commission on the firmest legal 
ground to promote the universal service goals of the Act.
    46. Wireline and Wireless Infrastructure. We find that 
reclassifying BIAS as a telecommunications service under Title II will 
support the Commission's mission to foster investment in and deployment 
of wireline and wireless infrastructure and to promote competition and 
access to BIAS for consumers. Specifically, we find that the 
application of sections 224, 253, and 332 of the Act to BIAS-only 
providers will provide equitable rights to those providers and the 
tools to enable the Commission to reach its goals, thereby promoting 
greater deployment, competition, and availability of both wireline and 
wireless BIAS. Furthermore, we find that the RIF Remand Order failed to 
adequately address the Mozilla court's concerns regarding the effects 
of reclassification on BIAS-only providers.
    47. Reclassification of BIAS as a Title II service will ensure that 
BIAS-only providers receive the same statutory protections for pole 
attachments guaranteed by section 224 of the Act that providers of 
cable and telecommunications services receive. Section 224 defines pole 
attachments as ``any attachment by a cable television system or 
provider of telecommunications service to a pole, duct, conduit, or 
right-of-way owned or controlled by a utility.'' It authorizes the 
Commission to prescribe rules to ensure that the rates, terms, and 
conditions of pole attachments are just and reasonable; requires 
utilities to provide nondiscriminatory access to their poles, ducts, 
conduits, and rights-of-way to telecommunications carriers and cable 
television systems (collectively, attachers); provides procedures for 
resolving pole attachment complaints; governs pole attachment rates for 
attachers; and allocates make-ready costs among attachers and 
utilities. The Act defines a utility as a ``local exchange carrier or 
an electric, gas, water, steam, or other public utility, . . . who owns 
or controls poles, ducts, conduits, or rights-of-way used, in whole or 
in part, for any wire communications.'' However, for purposes of pole 
attachments, a utility does not include any railroad, any cooperatively 
organized entity, or any entity owned by a Federal or State government. 
Section 224 excludes incumbent local exchange carriers (ILECs) from the 
meaning of the term ``telecommunications carrier,'' therefore these 
entities do not have a mandatory access right under section 224(f)(1). 
The Commission has held that when ILECs obtain access to poles, section 
224 governs the rates, terms, and conditions of those attachments. The 
Act allows utilities that provide electric service to deny access to 
their poles, ducts, conduits, or rights-of-way because of 
``insufficient capacity and for reasons of safety, reliability and 
generally applicable engineering purposes.'' As the Commission noted in 
2015, it ``has recognized repeatedly the importance of pole attachments 
to the deployment of communications networks'' and therefore has 
undertaken a series of reforms to improve access to poles under section 
224. The National League of Cities urges us to revisit and overturn our 
2018 Wireless Infrastructure Order (83 FR 51867 (Oct. 15, 2018)) and, 
until that time, forbear from application of sections 253 and 332(c) to 
reclassified BIAS. We agree with the Wireless Infrastructure 
Association that the former request is outside the scope of this 
proceeding. We decline to forbear from applying section 253 and 332(c) 
to BIAS for the reasons we discuss in section IV.B.9. To that end, the 
Commission continues to pursue solutions to improve pole access 
including, most recently in December 2023, by adopting new rules that, 
among other things, speed up the pole attachment dispute resolution 
process by establishing a new intra-agency rapid response team, set 
forth specific criteria for the response team to use when considering a 
complaint, and increase transparency for new broadband buildouts by 
requiring disclosure of pole inspection reports during the make-ready 
process. Under a Title I classification scheme, BIAS-only providers are 
not entitled to any of the current or future benefits the Commission 
may enact to facilitate access to broadband infrastructure.
    48. Section 253 of the Act provides further protections to 
telecommunications companies that,

[[Page 45415]]

through Title II reclassification, will apply to BIAS-only providers. 
Specifically, section 253 seeks to further facilitate deployment of 
communications services by enabling the Commission (or a court) to 
intervene when a State or local regulation or legal requirement ``may 
prohibit or have the effect of prohibiting the ability of any entity to 
provide any interstate or intrastate telecommunications service.'' 
Without reclassification, however, BIAS-only providers may not seek the 
Commission's intervention under section 253 when State or local 
regulations interfere with their network deployment. Moreover, State 
and local laws that are exclusively focused on, or exclusively 
implicate, the provision of BIAS, do not currently fall within the 
ambit of section 253 and thus cannot be the subject of Commission 
intervention when prohibiting or having the effect of prohibiting the 
provision of BIAS exclusively.
    49. In the wireless context, section 332 of the Act protects 
regulated entities from State and local regulations that ``unreasonably 
discriminate among providers or functionally equivalent services'' or 
that ``prohibit or have the effect of prohibiting the provision of 
personal wireless service.'' However, because mobile broadband is not 
currently classified as a ``commercial mobile service,'' mobile BIAS-
only providers who do not offer additional regulated services are not 
covered by section 332. As INCOMPAS notes, it has ``members who are 
solely focused on providing broadband services,'' and ``[t]he current 
classification of BIAS and mobile broadband as Title I services makes 
it difficult for these providers to argue that they are building the 
kinds of facilities capable of commingled operation that are covered by 
Sections 332 and 253.'' As with sections 224 and 253, without 
reclassification, mobile BIAS-only providers would be disadvantaged 
compared to their competitors.
    50. We find that reclassifying BIAS as a Title II service levels 
the playing field by ensuring that BIAS-only providers enjoy the same 
regulatory protections--those guaranteed by sections 224, 253, and 
332--as their competitors who offered services already classified as 
telecommunications services in addition to BIAS prior to our 
classification decision in the Order. As the Commission found in 2015, 
``[a]ccess to poles and other infrastructure is crucial to the 
efficient deployment of communications networks including, and perhaps 
especially, new entrants.'' INCOMPAS notes that BIAS providers face 
``significant barriers to deploy broadband network infrastructure--
among them access to poles, ducts, and conduit.'' The California Public 
Utilities Commission (CPUC) explains further that ``[a]ccess to poles, 
conduits, and rights-of-way may affect cost, feasibility, and timing of 
constructing and offering broadband services.'' Sections 224, 253, and 
332 however, seek to remove these barriers by guaranteeing providers 
access to utility poles at just and reasonable rates and by ensuring 
that State and local laws do not prohibit deployment. Even WISPA--the 
Association for Broadband Without Boundaries (WISPA), which otherwise 
opposes our reclassification decision, highlights the benefits of 
extending section 224 rights to BIAS-only providers.
    51. NCTA argues that restoring section 224 rights will only provide 
``illusory'' benefits to BIAS-only providers. We disagree. Under Title 
II, BIAS-only providers will be guaranteed access to utility poles at 
just and reasonable rates. BIAS-only providers, therefore, will no 
longer be forced to negotiate for the right of pole access directly 
with each set of pole owners, which will not only ensure they pay the 
same rates as their competitors but will also ensure that deployment of 
their networks is not unnecessarily bogged down by the negotiation 
process. While such benefits may seem ``illusory'' to the competitors 
who already enjoy such privileges, we find that eliminating one of the 
``significant barriers to deploy[ment] [of] broadband network 
infrastructure,'' is in fact a very real benefit for BIAS-only 
providers. Indeed, NCTA, who claims that the benefits of pole 
attachment rights will prove to be illusory, has consistently taken 
issue with the costs of pole attachments, even under the existing 
regime, and has regularly supported and championed the Commission's 
efforts to reduce the costs and burdens of obtaining pole access.
    52. We find that in addition to guaranteed pole attachment rates 
and more efficient deployment, Title II reclassification will also 
ensure that BIAS-only providers are protected by section 253, which 
provides that ``no [s]tate or local statute or regulation, or other 
[s]tate or local legal requirement, may prohibit or have the effect of 
prohibiting the ability of any entity to provide any interstate or 
intrastate telecommunications service.'' Likewise, mobile BIAS-only 
providers will receive protection under section 332 which requires 
State and local governments to act on ``any request for authorization 
to place, construct, or modify personal wireless service facilities 
within a reasonable period of time after the request is duly filed with 
such government or instrumentality, taking into account the nature and 
scope of such request.'' As INCOMPAS notes, ``a reclassification of 
BIAS . . . opens an avenue for additional protections for BIAS-only 
providers who may need Commission intervention to address state/local 
policies that restrict competitive deployment through its oversight for 
ensuring competitors can access new geographic markets.'' Under Title 
I, BIAS-only providers cannot seek assistance from the Commission if 
State or local governments interfere with the deployment of BIAS-only 
networks--once again, leaving them worse off than their regulated 
competitors. For example, under a Title I regulatory regime, if State 
or local permitting processes effectively prohibit the deployment of 
BIAS networks, BIAS-only providers cannot raise the issue with the 
Commission. In areas where both BIAS-only and providers of comingled 
services operate, providers of comingled services may seek a resolution 
with the Commission that would resolve the issue for BIAS-only 
competitors as well, but BIAS-only providers would be reliant upon 
their competitors to bring the action to the Commission in the first 
place. But if a State or local legal requirement solely affects BIAS, 
even providers that currently offer commingled services lack the 
ability under section 253 to challenge it given that section 253 only 
applies to those State and local legal requirements that affect the 
provisioning of ``telecommunications service.'' Moreover, in any area 
where BIAS-only providers are the sole provider of service (or are 
seeking to be a provider of service), they would be left without 
recourse. We agree with INCOMPAS, which notes that ``reclassification 
so that BIAS-only providers receive the same Title II protections as 
incumbent telecommunications providers is in the public interest as it 
will best ensure that the Communications Act's goal of the Commission 
enabling and promoting competition can be fulfilled and that consumers 
will benefit from additional choice in the marketplace.'' Therefore, we 
find that restoring section 253 rights of BIAS-only providers is not 
only equitable, but will help ensure that BIAS-only providers are 
adequately protected by the Commission's authority to address State and 
local policies that restrict deployment.
    53. In the RIF Remand Order, the Commission attempted to downplay 
its decision to strip section 224 rights from

[[Page 45416]]

BIAS-only providers by claiming that ``ISPs may gain the status of 
telecommunications providers, and thus become eligible for section 224 
pole attachment rights.'' Specifically, the Commission suggested that 
BIAS-only providers could either alter their business plans to offer 
other services that would then qualify them as telecommunications 
carriers or enter into partnerships with existing telecommunications 
carriers to attain section 224 rights. While it may be true that BIAS-
only providers could alter the business plans or partner with other 
regulated entities to ensure they receive equitable pole access, our 
regulations should not be designed to stifle innovative offerings 
distinct from those currently offered in the marketplace. Furthermore, 
each year more and more Americans are opting to forgo these additional 
non-BIAS telecommunications services and instead are choosing to have 
only a fixed BIAS connection in their homes along with a mobile 
connection. INCOMPAS notes that because customers are opting to use 
over-the-top video or VoIP services, many of its fixed BIAS members 
were losing money on video and voice services and ``have ceased 
offering voice and/or video options to their residential customers 
given that those customers can choose third-party over-the-top video or 
VoIP options for these services.'' Thus, requiring BIAS-only providers 
to pursue declining lines of business just to receive the same legal 
protections as their competitors makes little sense. And in following 
the RIF Remand Order's suggestion that BIAS-only providers could enter 
into partnerships with telecommunications carriers to gain pole access, 
BIAS-only providers would just swap one barrier to entry (negotiating 
directly with pole owners for access) for another (negotiating with a 
telecommunications carrier). As a result, the supposed solution the RIF 
Order offered up is in fact no solution at all and instead leaves BIAS-
only providers with a different ``competitive bottleneck.'' Moreover, 
the RIF Remand Order failed to cite to even one instance of such a 
partnership or provide any evidence that such a partnership would even 
be economically or practically feasible, only mentioning the 
possibility that BIAS-only providers might be able to pursue one. Even 
assuming the possibility of such a partnership, unlike with section 
224, which ensures pole owners provide access at just and reasonable 
rates, there are no legal safeguards to ensure that potential partners 
agree to reasonable terms with BIAS-only providers.
    54. In addition, we find that the RIF Remand Order erred in 
concluding that the ability of states under section 224(c) to establish 
their own pole attachment rules in place of the Federal rules (often 
referred to as reverse-preemption) minimizes the impact of the loss of 
section 224 rights on BIAS-only providers. First, the majority of 
jurisdictions have not chosen to reverse-preempt the Commission and 
instead have opted to continue to allow the Commission to regulate pole 
attachments under section 224. Second, we disagree with the conclusion 
in the RIF Remand Order, as well as those commenters who agree with the 
conclusion, that ``Title I classification does not impact the 22 states 
and the District of Columbia that have chosen to reverse-preempt our 
rules.'' An additional state, Florida, has subsequently reverse 
preempted the Commission's jurisdiction since the issuance of the RIF 
Remand Order. As INCOMPAS notes, some of the jurisdictions that have 
reverse-preempted the Commission have simply mirrored the Commission's 
rules so that any changes implemented by the Commission are also 
directly implemented by the state. For example, Pennsylvania has 
reverse-preempted the Commission but chosen to adopt the ``rates, terms 
and conditions of access to and use of utility poles, ducts, conduits 
and rights-of-way to the full extent provided for in 47 U.S.C. 224 and 
47 CFR chapter I, subchapter A, part 1, subpart J (relating to pole 
attachment complaint procedures), inclusive of future changes as those 
regulations may be amended.'' Therefore, because the Pennsylvania code 
reflects the ``rates, terms, and conditions of access to'' poles 
adopted by the Commission, reclassifying BIAS as a Title II service 
will provide pole access to BIAS-only providers in Pennsylvania even 
though Pennsylvania regulates its own poles. The same is true in West 
Virginia, another State that has reverse-preempted the Commission, 
where the West Virginia Public Service Commission, at the direction of 
the State legislature, adopted the FCC's pole attachment regulations in 
their entirety, including subsequent modifications, superseded existing 
pole attachment regulations that conflicted with Federal regulations, 
and otherwise rejected stakeholder requests to alter the Commission's 
regulations. Similarly, at least two other jurisdictions, the District 
of Columbia and Ohio, have reverse-preempted the Commission but 
continue to point to the Commission's regulations for reference. Three 
other states seemingly have only partially preempted the Commission's 
rules by opting to regulate only the attachments of other public 
utilities or cable television providers. In those states, the 
Commission's rules will continue to govern the attachments of 
telecommunications carriers. Thus, the Commission's pole attachment 
rules will continue to play a vital role in several jurisdictions that 
have elected to reverse-preempt, or partially reverse-preempt, the 
Commission.
    55. The RIF Remand Order further posits that ``if a state prefers 
to adopt a different regulatory approach, that state has the 
opportunity to exercise its authority to expand the reach of government 
oversight of pole attachments.'' But, as the CPUC, the Public Utility 
Commission for a State which has reverse preempted the Commission, 
argues, it is not entirely clear states can grant BIAS-only providers 
pole access pursuant to their section 224 reverse-preemption authority 
if the Commission itself has specifically chosen to exclude BIAS-only 
providers from the purview of Title II, the very source of authority 
from which section 224 authority emanates. Thus, under Title I 
classification, the right of BIAS-only providers to access poles in 
those states that have chosen to self-regulate is subject to 
uncertainty; and in the majority of jurisdictions, which are governed 
by the Commission's rules, such providers have no right to pole access 
at all.
    56. Furthermore, as the CPUC and other commenters note, the lack of 
clear legal authority to regulate BIAS-only providers presents public 
safety issues as states may not be able to enforce safety regulations 
on BIAS-only providers that do manage to attach to poles. The CPUC 
states, however, that ``reclassifying BIAS as a telecommunications 
service would eliminate this potential argument and the commensurate 
delay in responding to safety violations.'' We agree and find that, in 
addition to the economic benefits of affording section 224 rights to 
BIAS-only providers, reclassification will also ensure that the 
Commission and State utility commissions have the requisite legal 
authority to protect public safety concerns associated with the 
deployment of broadband-only infrastructure.
    57. We also find to be without merit the arguments of commenters 
who echo the Commission's contention in the RIF Remand Order that the 
loss of section 224 rights is not a serious issue because the majority 
of BIAS providers offer

[[Page 45417]]

comingled services. To be clear, we do not dispute the fact that the 
majority of BIAS providers offer at least one Title II-regulated 
service in addition to BIAS, as some commenters contend. We believe, 
however, that the small number of BIAS-only providers is not due just 
to the popularity of other regulated services, but also because BIAS-
only providers, many of which are smaller competitive companies, do not 
enjoy the competitive advantages of larger enterprises like many of 
their competitors. As a result, competitive bottlenecks and obstacles 
to deployment, such as access to poles at just and reasonable rates, 
present significant challenges to BIAS-only providers that may make 
breaking into markets with large entrenched incumbents next to 
impossible. As the CPUC notes, ``[a]ll forms of telecommunications, 
including broadband, require access to rights-of-way generally, and 
specifically to poles and conduits, which are controlled by incumbent 
local exchange carriers and other entities. Access to poles, conduits, 
and rights-of-way may affect cost, feasibility, and timing of 
constructing and offering broadband services.'' Furthermore, we believe 
that the RIF Remand Order completely overlooked the future competitive 
realities for BIAS-only providers and the resulting harms that its 
decision will yield. As we discussed above, consumers are becoming more 
reliant on BIAS and are continually foregoing the purchase of services 
offered alongside BIAS (i.e., cable and voice). As a result, there is 
no reason to doubt that more and more providers will begin offering 
only BIAS and without reclassification would have no rights pursuant to 
section 224. Therefore, we find that restoring the section 224 rights 
and easing the burdens of pole access is likely to ensure that the 
number of BIAS-only providers does not artificially shrink due to 
inequitable treatment under the law.
    58. Furthermore, we find that equitable regulatory treatment of 
BIAS-only providers, particularly with regard to regulations designed 
to speed network deployment, will also increase competition, ultimately 
benefitting consumers and assisting the Commission's goal of achieving 
universal service. We agree with INCOMPAS which states that 
``[a]dditional competition is key to tackling our nation's internet 
challenges'' and that the Commission must ensure that its policies do 
not further entrench large telecommunications carriers, reducing the 
viability of smaller, innovative alternative providers and also 
reducing the service options available to consumers. USTelecom states 
that ``[t]he NPRM cites no evidence that there are broadband-only 
providers that could not receive those benefits today or that the 
availability of the Broadband Equity, Access, and Deployment funding is 
leading to the creation of such providers,'' but INCOMPAS specifically 
notes that it ``expect[s] that many entities that will be competing for 
BEAD dollars will be BIAS-only'' and states that those entities 
``cannot exercise any rights afforded by Title II to speed their 
deployment.'' USTelecom further contends that ``there is no record 
evidence that Title I classification is preventing [BIAS-only 
providers] from obtaining just and reasonable pole attachment rates.'' 
Even accepting USTelecom's statement as true, it still misses the mark. 
Even if BIAS-only providers are somehow able to negotiate directly with 
pole owners to ultimately achieve rates that are just and reasonable, 
BIAS-only providers must still suffer the costs of securing pole access 
through private negotiations, and without any leverage, with each set 
of pole owners, unlike their regulated peers who have guaranteed access 
rights under section 224. Clearly then, by failing to provide equal 
access to the Act's legal protections on a nondiscriminatory basis, the 
Title I regime favors large incumbents at the expense of BIAS-only 
providers. Because we opt to restore the Title II classification of 
BIAS, we find it unnecessary to address commenters who suggest the 
Commission can provide similar rights to BIAS-only providers through 
other sections of the Communications Act.
    59. Multiple Tenant Environments (MTEs). In the 2023 Open Internet 
NPRM (88 FR 76048 (Nov. 3, 2023)), we sought comment on how 
reclassification of BIAS might impact the Commission's authority to 
regulate service providers in MTEs. Specifically, we asked how 
reclassification might provide the Commission additional authority to 
foster competition and promote consumer choice for those living and 
working in MTEs. We conclude now that reclassification of BIAS as a 
telecommunications service facilitates these goals by enabling the 
Commission to regulate broadband-only providers that serve MTEs and 
thereby to end unfair, unreasonable, and anticompetitive practices 
facing MTE residents. That is, reclassification would give the 
Commission authority to require BIAS-only providers to abide by the 
same kinds of rules--including those that prohibit exclusivity 
contracts that bar competition outright in MTEs--that other 
telecommunications and cable providers must currently follow. Such 
rules in turn would secure the same protections for all residents of 
MTEs, regardless of the kind of service offered by providers in their 
building; reduce regulatory asymmetry between broadband-only providers 
and other kinds of providers; and potentially improve competition in 
the MTE marketplace.
    60. More than 100 million people in the United States live or work 
in MTEs, including a disproportionate number of lower-income residents 
and members of marginalized communities. The Commission's rules, which 
regulate the kinds of agreements service providers may enter into with 
MTE owners, currently extend to telecommunications carriers as well as 
cable operators and multichannel video programming distributors 
(MVPDs). Developed pursuant to congressional direction to protect 
consumer choice in emerging communications technologies for residents 
of MTEs, these rules include, for example, a prohibition on exclusivity 
contracts that grant the provider the sole right to access and offer 
service in an MTE.
    61. However, these rules do not govern broadband-only providers 
today. Although many BIAS providers offer telecommunications, video 
programming, and other commingled services that subject them to the 
Commission's MTE rules, a provider offering only BIAS exists outside 
the scope of its rules. This means that while the Commission can, for 
example, impose rules on an entity offering both broadband and 
traditional phone service in an MTE, there is uncertainty about whether 
and when it could regulate a provider offering only the former. Even if 
such a provider entered into an agreement with an MTE owner barring 
competitors from the building outright--a type of agreement that the 
Commission has long declared anathema to the public interest--the 
Commission's rules would not apply and the Commission is not currently 
aware of other authority it could rely on to prevent such an agreement.
    62. We thus find that reclassification of BIAS as a Title II 
service, which would provide us authority to regulate broadband-only 
providers, enables the Commission to address these potential regulatory 
gaps and ensure that all MTE tenants may benefit from the pro-consumer 
MTE rules the Commission has adopted and may adopt in the future as 
part of its current open proceeding.

[[Page 45418]]

We therefore agree with Public Knowledge that reclassification would 
have many benefits for MTE residents including, among others, greater 
competition and innovation in MTEs, lower costs for consumers, and 
improved customer service. Reclassification would also create the 
potential for parity between BIAS-only and other providers serving 
MTEs, as well as protections for BIAS-only providers unable to compete 
against those employing anticompetitive practices.
    63. We disagree with CTIA--The Wireless Association's (CTIA) 
contention, citing the Commission's 2022 MTE Report and Order and 
Declaratory Ruling (87 FR 51267 (Aug. 22, 2022)), that reclassification 
and regulation of the ``few'' BIAS-only providers in MTEs would 
``disregard[ ] the Commission's `incremental approach' in this area,'' 
and that the Commission offers ``no significant evidence as to why the 
Commission should change course now.'' The 2022 MTE Report and Order 
and Declaratory Ruling adopted new rules and targeted additional 
practices that reduce consumer choice in MTEs. We note that in that 
proceeding's record, some commenters urged the Commission to ``subject 
broadband-only providers to our rules governing MTE access, citing . . 
. potential harms that could result from regulatory asymmetry if [it] 
did not.'' The Commission declined to extend its rules to broadband-
only providers at the time, citing its historically incremental 
approach to MTE regulation but noting explicitly that it would 
``continue to monitor competition in MTEs to determine whether we 
should alter the scope of [the] rules.'' However, nothing in the 2022 
MTE Report and Order and Declaratory Ruling belies commenters' claims 
about the harms arising out of the regulatory asymmetry, which we find 
remain valid today. Meanwhile, commenters in opposition to 
reclassification fail to raise arguments that justify failing to extend 
the benefits of the Commission's rules to MTE residents where a 
broadband-only provider offers service to a building.
    64. We are also unpersuaded by CTIA's claims that broadband-only 
providers are so few in number that it justifies the Commission not 
taking any additional action to curb anticompetitive, unfair, and 
unreasonable practices by broadband-only providers in MTEs. Even 
assuming that CTIA is correct, or that the majority of service 
providers offer commingled services, it is unclear whether this will 
remain true in the future. And while some commenters claim that the 
Commission failed to identify widespread abuses by BIAS-only providers 
in the 2023 Open Internet NPRM, others, such as AARP, highlight that 
such abuses may indeed be ongoing, pointing to an alleged instance of a 
broadband-only provider exploiting its status to enter into an 
exclusivity contract. We therefore find that these abuses are not 
merely speculative or theoretical, and provide additional support for 
the Commission's decision to reclassify BIAS as a Title II service.
    65. Some commenters contend that the Commission need not reclassify 
BIAS to protect tenants and can instead rely on its ancillary or other 
existing authority to address broadband-only providers. Such authority, 
however, does not provide the same firm legal footing as Title II and 
thus is less likely to offer enduring protections for residents of 
MTEs. WISPA, in its comments, expresses concern that reclassification 
of BIAS would result in rule protections for over-the-air reception 
devices (OTARDs) no longer being available to fixed wireless broadband-
only providers and contends that this will discourage deployment of 
broadband in multi-tenant environments, neighborhoods lacking access to 
nearby towers, and similar environments. We acknowledge WISPA's 
concerns, and we will examine whether to revise Sec.  1.4000(a)(5) in 
another proceeding. While classification of BIAS may affect the scope 
of services that are covered under the Commission's rules regarding 
over-the-air reception devices, classification of BIAS as 
telecommunications service may also qualify fixed wireless broadband 
services for the protections available under sections 332(c)(7) and 
253. Although sections 253 and 332(c)(7) do not apply to restrictions 
by private landlords they do provide for Federal preemption of State 
and local zoning restrictions that ``prohibit or have the effect of 
prohibiting'' ``the ability of any entity to provide any interstate or 
intrastate telecommunications service'' and ``the provision of personal 
wireless services.''
    66. Finally, we disagree with WISPA that any purported benefits of 
applying our MTE rules would be outweighed by a slowdown in broadband 
investment in MTEs precipitated by the need for BIAS-only providers to 
``assess the impact [reclassification more broadly would have] on their 
business plans.'' We find that to the extent our reclassification of 
BIAS as a Title II service would cause a BIAS-only provider to re-think 
an exclusive contract to serve an MTE or an otherwise anticompetitive 
arrangement in an MTE, that would be an additional benefit to 
consumers, not a drawback. Moreover, our ability to regulate BIAS-only 
providers in MTEs is but one reason moving us to reclassify BIAS as a 
Title II service. Thus, the benefits outlined elsewhere in addition to 
those detailed here must be considered in the aggregate.
    67. Universal Service. Reclassifying BIAS as a telecommunications 
service will also promote the universal service goals of section 254 by 
enabling more efficient deployment of broadband networks and greater 
access to affordable broadband service. In the 2023 Open Internet NPRM, 
we asked how reclassification might better enable the Commission to 
steward our universal service programs in a way that is responsive to 
the communications needs of the modern economy. We specifically sought 
comment on how reclassification might strengthen the Commission's 
statutory authority to provide BIAS through the USF, eventually allow 
broadband-only providers to once again participate in the Lifeline 
program, and protect public investment in BIAS access and 
affordability. Reclassification enhances the Commission's ability and 
flexibility to address affordability and availability issues across the 
country, both immediately and in the future. So as to not unnecessarily 
disrupt the current marketplace without ample consideration, the 
Commission does not designate BIAS as a supported service or extend 
eligible telecommunications carrier (ETC) eligibility to BIAS-only 
providers at this time. Such action would best be considered in a 
future proceeding.
    68. Universal Service is the principle that all Americans should 
have access to telecommunications services and advanced communications 
services at just, reasonable, and affordable rates in all regions of 
the Nation. The Commission administers four programs in furtherance of 
these principles using contributions from telecommunications carriers 
to the USF: the High Cost program, which helps eligible carriers 
recover some of the cost of providing access to modern communications 
networks to consumers in rural, insular, and high-cost areas; the 
Lifeline program, which provides discounted voice service and BIAS 
through eligible carriers to qualifying low-income subscribers; the E-
Rate program, which provides discounts to eligible schools, school 
districts, and libraries to purchase affordable BIAS; and the Rural 
Health Care program, which provides funding to eligible health care 
providers to purchase telecommunications and

[[Page 45419]]

broadband services necessary for the provision of health care. All four 
USF programs fund BIAS or infrastructure and are able to rely on 
statutory authority to do so regardless of BIAS's classification. 
Classifying BIAS as a telecommunications service, however, will put the 
Commission on the firmest legal ground to promote the universal service 
goals of section 254 by enabling the Commission and states to designate 
BIAS-only providers as ETCs.
    69. The Commission has concluded that section 254(e) of the Act 
allows for the use of universal service funds to benefit both the 
facilities used to provide supported telecommunications service, and 
the supported telecommunications services themselves, which permits the 
Commission to provide High Cost and Lifeline program support for non-
telecommunications services offered over networks that also provide 
telecommunications services. The Commission currently conditions 
receipt of support on the provision of broadband service in funded 
networks in 11 of the 15 High Cost program funds, and also supports 
broadband through the Lifeline program.
    70. The Commission has distinct authority to provide support for 
BIAS and connections through the E-Rate and Rural Health Care programs. 
Section 254(c)(3) specifies that ``the Commission may designate 
additional services for such support mechanisms for schools, libraries, 
and health care providers for the purposes of subsection (h).'' 
Subsection (h) reads, in part: ``[t]he Commission shall establish 
competitively neutral rules--to enhance, to the extent technically 
feasible and economically reasonable, access to advanced 
telecommunications and information services for all public and 
nonprofit elementary and secondary school classrooms, health care 
providers, and libraries.'' The Commission has acted pursuant to 
section 254(c)(3) to designate BIAS as eligible for support under both 
the E-Rate and Rural Health Care programs. The Commission concluded at 
the inception of the E-Rate program that it has the authority to 
support BIAS access and connections ``provided by both 
telecommunications carriers and non-telecommunications carriers'' 
through the E-Rate program because ``such services enhance access to 
advanced telecommunications and information services for public and 
non-profit elementary and secondary school classrooms and libraries.'' 
The Commission also determined that it could fund BIAS support through 
the Rural Health Care program under section 254(h).
    71. However, section 214(e) limits providers receiving USF support 
to common carriers providing telecommunications services and designated 
as ETCs after undergoing Commission or State commission approval 
processes. Currently, only carriers that offer qualifying voice 
telephony services can be designated as ETCs and receive support from 
the two USF programs that provide funds directly to carriers, the High 
Cost and Lifeline programs. Reclassification will allow BIAS-only 
providers to act as common carriers providing telecommunications 
service and enable them to be designated as ETCs. Indeed, after the 
2015 Open Internet Order (80 FR 19738 (Apr. 13, 2015)), the Wireline 
Competition Bureau designated ten such providers as ``Lifeline 
Broadband Providers'' (LBPs), and some of those providers began 
providing service that was subsidized by Lifeline support. But in 2017, 
the Bureau rescinded those designations, and since the RIF Order and 
the RIF Remand Order, standalone broadband providers have remained 
unable to receive critical Lifeline universal service support.
    72. Allowing BIAS-only providers to participate in the High Cost 
and Lifeline programs would enhance both programs. Both programs are 
already oriented overwhelmingly toward BIAS over other service types. 
As discussed above, providers in most High Cost program funds are 
required to build BIAS-capable networks. Moreover, as of September 2023 
approximately 96% of Lifeline customers subscribe to a plan that 
includes broadband service. Several commenters echo many of the 
anticipated benefits of allowing carriers that do not provide voice 
services to participate in the High Cost and Lifeline programs 
discussed in the 2023 Open Internet NPRM, including increased 
competition, program participation, consumer choice, rural coverage, 
and affordability. The Commission also has recognized that 
``encourag[ing] market entry and increased competition among Lifeline 
providers, which will result in better services for eligible consumers 
to choose from and more efficient usage of universal service funds.'' 
One commenter stresses that allowing BIAS-only providers to become ETCs 
will particularly benefit consumers in areas where there are currently 
few or no ETCs that provide BIAS. The need to allow BIAS-only providers 
to become ETCs is more important and will provide more utility than it 
did when BIAS was last classified under Title II, as the 2015 
classification allowed Lifeline subscribers to apply the benefit to a 
``new generation of ISPs that [did] not use their facilities to offer 
voice services,'' and now there are even more ways to provide BIAS via 
innovative, affordable, and user-friendly technologies.
    73. Thus, we adopt the 2023 Open Internet NPRM's tentative 
conclusion ``that classifying BIAS as a telecommunications service will 
strengthen our policy initiatives to support the availability and 
affordability of BIAS through USF programs.'' The majority of 
commenters support this conclusion. Commenters state that, through the 
USF, the Federal government has made significant investments in 
networks to ensure BIAS is available to all consumers and in service 
subsidies to ensure BIAS is affordable for all consumers, and 
reclassification ``will enable the Commission to protect these 
investments on an ongoing basis by ensuring that these connections 
benefit users.'' Commenters further stated that ``[t]he Commission 
needs clear authority over broadband-only services to implement and 
maintain an effective and efficient Lifeline policy.''
    74. A minority of commenters disagree with the 2023 Open Internet 
NPRM's tentative conclusion that we adopt in the Order. Several 
commenters argue that USF considerations are relatively unimportant 
because direct appropriations programs such as the Commission's 
Affordable Connectivity Program (ACP) and NTIA's Broadband Equity, 
Access, and Deployment (BEAD) Program are viable alternatives to 
achieving USF goals. Some commenters further argue that 
reclassification will deter private sector participation in the BEAD 
program. We find these claims to be speculative and give them no 
weight. Given that there is no definitive evidence that 
reclassification adversely affects privately funded BIAS investment, if 
it has any effect at all, see infra section III.H, we find the claim 
that reclassification would adversely affect BIAS investment that is 
substantially publicly funded to not be credible. Furthermore, we find 
as a general matter that new obligations on BIAS providers are unlikely 
to be more onerous under Title II than is the case currently, and 
therefore find it unlikely that BIAS providers' decisions to 
participate in publicly funded programs would be meaningfully impacted 
as a result of reclassification. At least one commenter stressed the 
importance of funding the ACP or making the ACP part of the USF. 
Another party stressed both the need to renew ACP funding and the risks 
of making ACP part of the

[[Page 45420]]

USF. These issues are the remit of Congress and the Commission is 
unable to accomplish either through this or any proceeding. We 
therefore decline to address them here. We do not believe that the 
strength of other programs dependent on different funding sources 
should prevent the Commission from strengthening the USF. Closing the 
digital divide is a large undertaking that benefits from multiple 
programs, and we note that some of these alternative programs are 
winding down given their lack of funding. Moreover, the Commission is 
statutorily required to preserve and advance the USF. One commenter 
contends that the benefits of reclassification to the Commission's 
universal service goals may not be realized because BIAS-only providers 
will be unwilling to assume increased oversight by State or Federal 
regulators to obtain ETC designation. This claim is not only 
speculative, it ignores the new opportunities that Title II offers to 
these providers to expand their networks and subscriber base through 
potential eligibility to participate in the High Cost and Lifeline 
programs. Moreover, as discussed above, the record shows significant 
consumer interest in allowing BIAS-only providers to become ETCs. We 
also make clear that reclassification only provides an opportunity to 
BIAS-only providers to become ETCs; it does not mandate it. Neglecting 
it because of the existence of other programs defies this mandate. One 
commenter argues that the Commission should focus on ``ensuring that 
funding issued through the Universal Service Funds or the Affordable 
Connectivity Program are not wasted or subject to fraud or abuse'' 
instead of reclassification. The Commission currently has strong 
program integrity protections for the USF programs and continues to 
update them as needed. USF program integrity, however, is only 
tangentially related to BIAS reclassification and does not have a 
significant impact on our actions taken in the Order. We also decline 
to address commenters arguing for reforms to the portions of the USF 
that states regulate because they are similarly unrelated to the 
proceeding.
    75. We reject some commenters' assertions that as to universal 
service, reclassification is a solution in search of a problem because 
USF programs are functioning properly, the Commission currently has a 
strong legal basis to support BIAS through USF programs, and 
reclassification would not further, and would possibly hinder, 
affordability and availability goals. While we agree that the USF 
programs are currently well positioned to further BIAS availability and 
affordability, we disagree that reclassification cannot better position 
the statutory basis for the Commission's universal service efforts. As 
noted above, with reclassification, we remove any doubt about the 
ability of the Commission to support BIAS-only providers with our 
universal service programs. While the Commission is not taking steps in 
the Order to allow BIAS-only providers to receive High Cost or Lifeline 
program support, the ever-changing nature of communications offerings 
may necessitate such future action to ensure that limited Commission 
resources are going towards services consumers need. Our action in the 
Order bolsters our existing legal framework and gives the Commission 
flexibility to establish BIAS as a supported telecommunications 
service.
    76. We also adopt the 2023 Open Internet NPRM's tentative 
conclusion that classifying BIAS as a telecommunications service would 
protect public investments in BIAS access and affordability. 
Establishing firmer legal authority to fund BIAS through the High Cost 
and Lifeline programs ensures that public funds can continue to flow 
into network buildouts and discounted service. Commenters agree that 
reducing barriers to USF participation, including by potentially 
allowing BIAS-only carriers to participate in the High Cost and 
Lifeline programs in the future, will protect public investment by 
increasing the number of entities eligible to receive it, including 
small providers previously ineligible to become ETCs and providers in 
rural areas where there had been no or few ETCs prior. We are 
unpersuaded by one commenter's argument that ``the NPRM's tentative 
conclusion that reclassification `protects public investments in 
[broadband] access and affordability' ignores the fact that, in the 
bipartisan [Infrastructure Investment and Jobs Act of 2021 (IIJA)], 
Congress appropriated tens of billions of dollars for broadband 
deployment, adoption, and affordability without subjecting broadband to 
any Title II requirements.'' Congress's choice to support discrete 
public investment through special appropriations does not affect 
whether reclassification furthers the Commission's ability to protect 
ongoing public investment distinct from or in concert with 
appropriations.
    77. While we agree with the potential for expanded access to our 
universal service programs, we do not, however, designate BIAS as a 
supported service at this time. Section 254(c)(1)'s requirement that 
the Commission ``shall establish periodically'' which 
telecommunications services meet the USF supported service standard 
does not require the Commission to designate universal services at any 
specific interval or time, much less the moment a service is classified 
as a telecommunications service. The record created in this proceeding 
is insufficient to properly and effectively address all of the concerns 
raised by designating BIAS a supported service. Rather than adjust our 
USF rules on a piecemeal basis, retaining existing supported universal 
services and, by extension, ETC eligibility standards, provides us the 
flexibility for holistically examining reclassification's effects on 
the USF at a later time. For this reason, we decline at this time to 
revise our definition of supported services.
8. Improving Access for People With Disabilities
    78. We find that reclassification of BIAS under Title II will 
enhance the Commission's authority to ensure that people with 
disabilities can communicate using BIAS. Specifically, we agree with 
commenters that reclassification will enable the Commission to utilize 
its authority under sections 225, 255, 251(a)(2), and the newly adopted 
open internet rules to ensure that BIAS is accessible for people with 
disabilities.
    79. People with disabilities who have access to BIAS rely on 
internet-based forms of communications for more effective and efficient 
direct and relayed communications. Reclassification of BIAS under Title 
II and prohibiting BIAS providers from blocking or throttling 
information transmitted over their BIAS networks, engaging in paid or 
affiliated prioritization arrangements, and engaging in practices that 
cause unreasonable interference or disadvantage to consumers will allow 
the Commission to better safeguard access to internet-based 
telecommunications relay services (TRS). Reclassification will also 
allow the Commission to ensure that BIAS and equipment used for BIAS 
are accessible to and usable by people with disabilities and precludes 
the installation of ``network features, functions, or capabilities that 
do not comply with the guidelines and standards established pursuant to 
section 255 . . . .'' These provisions work in concert with sections 
716 and 718 of the Act, giving the Commission authority to increase and 
to maintain access for people with disabilities to modern 
communications. Section 716 of the Act requires that advanced 
communications services be accessible to and usable by people with

[[Page 45421]]

disabilities. Advanced communications services are: ``(A) 
interconnected VoIP service; (B) non-interconnected VoIP service; (C) 
electronic messaging service; (D) interoperable video conferencing 
service; and (E) any audio or video communications service used by 
inmates for the purpose of communicating with individuals outside the 
correctional institution where the inmate is held, regardless of 
technology used.'' Section 718 of the Act requires that internet 
browsers installed on mobile phones be accessible to people who are 
blind or visually impaired to ensure the accessibility of mobile 
services.
    80. For example, persons who are deaf, hard of hearing, or have 
speech disabilities use BIAS to connect to internet-based video 
applications to communicate directly with other persons who use sign 
language (point-to-point) and other individuals who do not use the same 
form of communication. These applications include Video Relay Service 
(VRS), which involves multi-party synchronous high-definition video and 
audio streaming requiring users to have a high-speed broadband 
connection with sufficient data and bandwidth. Under section 225, the 
Commission may make a telecommunications relay service like VRS 
available to people with disabilities, but to use VRS, those 
individuals must still subscribe to BIAS or mobile BIAS. Section 225 
enables us to ensure that individuals with hearing and speech 
disabilities can use BIAS-based services to communicate in a ``manner 
that is functionally equivalent'' to the ability of a person who does 
not have a hearing or speech disability. As the Commission recognized 
in the 2015 Open Internet Order, BIAS providers may impede the ability 
of the Commission to ensure BIAS-based forms of TRS are functionally 
equivalent if they adopt network management practices that have the 
effect of degrading the connections carrying video communications of 
persons with hearing and speech disabilities. For instance, bandwidth 
limits, data caps, or requirements to pay additional fees to obtain 
sufficient capacity can have a disproportionate negative impact on 
those people with disabilities who use VRS. These video-based services 
are used by people whose first language is sign language and are the 
only means of direct communications or a communications service that is 
functionally equivalent to voice communications services used by 
persons without hearing or speech disabilities.
    81. We reject the argument by some commenters that reclassification 
of BIAS under Title II will not enhance the Commission's authority to 
ensure the accessibility of BIAS or will not improve accessibility of 
BIAS for people with disabilities, given the existence of the Twenty-
First Century Communications and Video Accessibility Act (CVAA). For 
example, USTelecom and CTIA argue that reclassification is ``not 
necessary'' or would have ``no impact on accessibility'' because 
Congress has already given the Commission the requisite authority to 
ensure the accessibility of BIAS in sections 716 and 718, which do not 
rely on the classification of BIAS. Reclassification will apply 
statutory provisions to BIAS that will enhance our ability to improve 
the accessibility of BIAS and internet-based communication services for 
people with disabilities. Specifically, as discussed below, we do not 
forbear from the application of sections 225, 251(a), and 255 or their 
implementing regulations. We disagree with USTelecom that these 
benefits are negligible. While the CVAA permits the Commission to adopt 
certain regulations concerning ``advanced communications services,'' 
BIAS itself is not an advanced communications service, as specifically 
defined in the CVAA. For example, the CVAA directs the Commission to 
enact regulations to prescribe, among other things, that networks used 
to provide advanced communications services ``may not impair or impede 
the accessibility of information content when accessibility has been 
incorporated into that content for transmission through . . . networks 
used to provide [advanced communications services].'' Under section 
716, 47 U.S.C. 617, a manufacturer of equipment used for advanced 
communications services must ensure that such equipment is accessible 
to and usable by individuals with disabilities, if achievable; and 
similarly providers of advanced communications services must ensure 
that those services are accessible to and usable by individuals with 
disabilities, if achievable. Accordingly, reclassifying BIAS allows us 
to regulate that service under Title II in ways that complements our 
authority over advanced communications services under the CVAA. For 
example, under Title II, providers of BIAS and manufacturers of BIAS 
equipment and BIAS customer premises equipment must ensure that such 
equipment and services are accessible to and usable by individuals with 
disabilities, if readily achievable. In addition, section 251(a)(2) 
prohibits providers of telecommunications services from installing 
network features, functions, or capabilities that impede accessibility.

B. Broadband Internet Access Service Is Best Classified as a 
Telecommunications Service

    82. We conclude that BIAS is best classified as a 
telecommunications service based on the ordinary meaning of the 
statutory definitions for ``telecommunications service'' and 
``information service'' established in the 1996 Act. This conclusion 
reflects the best reading of the statutory terms applying basic 
principles of textual analysis to the text, structure, and context of 
the Act in light of (1) how consumers understand BIAS and (2) the 
factual particulars of how the technology that enables the delivery of 
BIAS functions. We recognize that when interpreting a statute, our 
``analysis begins with the text'' of the statute ``and we look to both 
`the language itself [and] the specific context in which that language 
is used.' '' As explained below, the Commission also has well-
established and longstanding authority and responsibility, provided by 
Congress, to classify services subject to the Commission's 
jurisdiction, as necessary, using the Act's definitional criteria, 
including the statutory provisions enacted as part of the 1996 Act. And 
though not necessary to our conclusion that treating BIAS as a 
telecommunications service is the best reading of the Act based on the 
statutory text, structure, and context, our decision here is further 
supported by the principles set forth by the Supreme Court in Chevron, 
U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron). Our 
analysis is also appropriately afforded deference under Skidmore v. 
Swift & Co. Commenters in the record take various positions about 
possible judicial deference regimes that might (or might not) apply to 
our classification decision. We need not linger over those disputes 
given that we find our classification of BIAS reflects the best reading 
of the Act irrespective of such considerations. We also conclude that 
BIAS is not best classified as an information service.
    83. Our application of the statutory definitions to BIAS is driven 
by how typical users understand the BIAS offering. For an offering to 
meet the ``telecommunications service'' definition, the 
telecommunications component of the offering, from the perspective of 
the end user, must have

[[Page 45422]]

a sufficiently separate identity from the other components to 
constitute a separate offering of service. As the Supreme Court 
explained in Brand X, ``[i]t is common usage to describe what a company 
`offers' to a consumer as what the consumer perceives to be the 
integrated finished product, even to the exclusion of discrete 
components that compose the product.'' The D.C. Circuit affirmed that 
consumer perception is important to determining the proper 
classification of a service in USTA. Furthermore, the Commission has 
consistently analyzed consumers' understanding of the offering in its 
decisions classifying broadband services. The 2015 Open Internet Order 
and RIF Order both analyzed their classification decisions based on 
consumers' understanding of the offering. That we should understand the 
Act's definitional terms based on the consumer perception of the 
offering is also supported by the references to the ``user'' in the 
definition of ``telecommunications.'' The record also provides support 
for relying on consumer perception to conduct our classification 
analysis, and in light of the record and the well-established basis for 
relying on consumer perception and BIAS provider marketing, we disagree 
with commenters who argue that this consideration is unsuitable to our 
classification analysis.
    84. Our classification decision also is guided by an evaluation of 
the statutory definitions based on the factual particulars of how the 
technology that enables the delivery of BIAS functions. In Brand X, the 
Supreme Court noted that the question of what service is being offered 
depends on ``the factual particulars of how internet technology works 
and [how the service] is provided.'' Past Commission classification 
decisions also indicate that evaluation of the underlying technology is 
an important factor. Consistent with the 2015 Open Internet Order, we 
also find that the functionality of the offering is also informed by 
how BIAS providers market the offering, including whether the offering 
is focused on the transmission capabilities of the service or any 
information service component or capabilities that may be provided with 
the transmission component. We therefore disagree with commenters who 
argue that this consideration should not apply to our classification 
analysis.
1. BIAS Is an Offering of Telecommunications for a Fee Directly to the 
Public
    85. We conclude that BIAS is best classified as a 
``telecommunications service'' under the Act because it is an 
``offering of telecommunications for a fee directly to the public.'' 
The RIF Order did not dispute that BIAS providers offer BIAS directly 
to the public for a fee. In support of this conclusion, we find that 
BIAS provides ``telecommunications,'' as defined in the Act, because it 
provides ``transmission, between or among points specified by the user, 
of information of the user's choosing, without change in the form or 
content of the information as sent and received.''
    86. As the Commission has previously observed, the critical 
distinction between a telecommunications service and an information 
service turns on what the provider is ``offering.'' The record in this 
proceeding leads us to the conclusion that BIAS is perceived by 
consumers and functions as a transmission conduit that does not alter 
the information it transmits. The record also demonstrates that 
consumers perceive--and BIAS providers market--BIAS as a standalone 
offering of such telecommunications, which is separate and distinct 
from the applications, content, and services to which BIAS provides 
access, and which are generally information services offered by third 
parties. While we ground our conclusion that consumers perceive--and 
BIAS providers market--BIAS as a telecommunications service on the 
record before us in this proceeding, we also find that the conclusions 
reached by the 2015 Open Internet Order about consumer perception and 
BIAS provider marketing were not only accurate regarding the BIAS 
offered at the time, but remain accurate concerning BIAS today. 
Additionally, no party in the record disputes that BIAS providers 
routinely market BIAS widely and directly to the public for a fee, and 
therefore that BIAS is not a private carriage service.
a. BIAS Provides Telecommunications
    87. The record evinces significant support for the general 
proposition that BIAS provides ``telecommunications''; that is, BIAS 
provides ``transmission, between or among points specified by the user, 
of information of the user's choosing, without change in the form or 
content of the information as sent and received.''
    88. BIAS Transmits Information of the User's Choosing. BIAS 
transmits information of a user's choosing both functionally and from a 
user's perspective, providing two independent, alternative grounds for 
this conclusion. Functionally, as a packet-switched transmission 
service using Internet Protocol (IP), BIAS transmits information of a 
user's choosing because a user decides what information to place in 
each IP packet that is transmitted when the user decides what 
information to send and receive. A user chooses to send or receive 
particular information when the user visits a particular website, uses 
a particular application, or operates a particular online device or 
service. We are therefore unpersuaded by USTelecom's argument that BIAS 
does not provide telecommunications because users often receive 
information that is not of their choosing, such as display advertising 
on a web page. That the user may not know exactly what information the 
user will receive does not mean that the information was not ``of the 
user's choosing.'' Just as traditional voice service provides 
telecommunications even though a user making a telephone call does not 
necessarily know who will answer or what information will be conveyed 
in the call, BIAS provides telecommunications even when a user does not 
necessarily know exactly what information will be received in response 
to the user's selections. We are likewise unconvinced by NCTA's 
argument that BIAS does not transmit information of the user's choosing 
because, ``unlike traditional, circuit-switched voice services, in 
which the user chooses and sends the information--i.e., his or her 
voice--to a particular called party, broadband involves continual 
interaction between computers and the transmission network, as well as 
among computers themselves.'' To the extent BIAS is continually sending 
and receiving information, it is doing so because users are choosing to 
interact with websites, applications, or online devices or services, 
and they are therefore directing the sending and receiving of such 
information.
    89. BIAS Transmits Information Between or Among Points Specified by 
the User. The consumer perspective and technological functionality 
confirm that BIAS transmits information between or among points 
specified by the user, providing two independent, alternative grounds 
for this conclusion as well. A typical consumer understands the phrase 
``points specified by the user'' to mean the person, business, or 
service provider with which the user intends to share information. 
Therefore, when a consumer chooses to use a particular

[[Page 45423]]

website, application, or online device or service, the user perceives 
that the user is specifying the points for the transmission of the 
information that the user is sending or receiving. The ordinary meaning 
of the terms ``specify'' and ``point,'' taken together, demonstrates 
that users understand that when they ``specify'' the ``point,'' of 
their choosing, they are specifying the website, application, online 
device, or service with which they wish to communicate, regardless of 
its physical or virtual location. We conclude that when BIAS users 
expressly or explicitly identify to BIAS providers the particular 
website, application, or online device or service they wish to access, 
they would understand themselves to be specifying the points between or 
among which the relevant information will be transmitted. Even assuming 
arguendo that ``points specified by the user'' should be interpreted 
more narrowly, the applications users are controlling to access 
information may actually know the specific destination before the 
transmission occurs, which provides an independent alternative basis 
for our conclusion. This is true, contrary to some commenters' claims, 
even if a user does not know the specific geographic location of that 
person, business, or service provider or the precise physical or 
virtual location or address where the requested content is stored. 
Functionally, a user is also specifying the IP address of their desired 
point even when the user enters a fully qualified domain name, such as 
www.example.com, because the domain is resolved by the DNS to the 
appropriate IP address. Additionally, the fact that users may specify a 
point associated with more than one virtual location or address (e.g., 
due to load balancing) ``does not transform that service to something 
other than telecommunications.'' Indeed, the Commission has ``never 
understood the definition of `telecommunications' to require that users 
specify--or even know--information about the routing or handling of 
their transmissions along the path to the end point, nor do we do so 
now.'' This understanding of the ``points specified by the user'' 
phrase is consistent with the 2015 Open Internet Order, which noted 
that users ``would be quite upset if their internet communications did 
not make it to their intended recipients or the website addresses they 
entered into their browser would take them to unexpected web pages.'' 
Thus, ``there is no question that users specify the end points of their 
internet communications.''
    90. That users specify the points for the transmission of their 
information when using BIAS is consistent with the functionality of 
other forms of telecommunications. For example, in the context of 
mobile voice service, when a user dials a number, the call is routed to 
a cell tower near the called party--likely the one that would provide 
the best user experience--just as how a BIAS user's query to a video 
streaming service is often directed toward the server nearest to the 
user. In neither case does the user know the precise geographic 
location of the ``point'' specified. With toll-free 800 service, a call 
dialed to a single telephone number may route to multiple locations 
that are unknown to the user. Similarly, with call bridging services, 
when a user dials a telephone number, the call is routed often to 
multiple points, all with geographic locations that are unknown to the 
user. Additionally, when the Commission first had the opportunity to 
classify a broadband service--namely, digital subscriber line (xDSL)-
based advanced service--in the Advanced Services Order (63 FR 45140 
(Aug. 24, 1998)), it concluded that the end user chooses the 
destination of the IP packets sent beyond the central office where the 
tariffed service of Bell Operating Companies (BOCs) ended, relying on 
the function of such voice services. The Commission did not understand 
any of these services to fall outside the meaning of telecommunications 
simply because the user did not know the precise location of the 
points.
    91. The statutory context reinforces this understanding. The 1996 
Act, which enacted the ``telecommunications'' definition, also included 
section 706, which directs the Commission to ``encourage the deployment 
. . . of advanced telecommunications capability,'' and to conduct 
marketplace reviews in that regard. Section 706 defines the specific 
sorts of ``telecommunications capability'' at issue as ``enabl[ing] 
users to originate and receive high-quality voice, data, graphics, and 
video telecommunications using any technology''--but does not 
separately define ``telecommunications capability'' or 
``telecommunications.'' Consequently, pursuant to section 3(b) of the 
1996 Act, the definition from section 3 of the Communications Act--
i.e., the ``telecommunications'' definition we are applying here--
applies to the use of ``telecommunications'' in section 706 of the 1996 
Act. It is improbable that users could be expected to have more 
knowledge of the specific geographic or virtual locations between or 
among which ``high-quality voice, data, graphics, and video'' are 
transmitted than they do in the case of BIAS transmissions. Similarly, 
that Congress considered the information a user receives in the form of 
``high-quality voice, data, graphics, and video'' to fall within 
``advanced telecommunications capability'' accords with the 
understanding that users likewise have chosen the information they 
receive when accessing the internet using BIAS, even if they have not 
anticipated and specified its minutest details.
    92. BIAS Transmits Information Without Change in the Form or 
Content as Sent and Received. BIAS transmits information ``without a 
change in its form or content as sent and received'' from a user 
perspective. The record demonstrates that users expect that their 
information will be sent and received without change and does not show 
that these user expectations are not being met. There is even record 
evidence that consumers have rejected past attempts by BIAS providers 
to change the form or content of their information. When a user 
``chooses'' to stream a music video, for example, the user expects to 
hear the song and see the choreography without it being changed by 
their BIAS provider. The record does not show that the user perceives 
any processing or intelligence that is employed to deliver the video, 
let alone understands that processing or intelligence to cause a change 
in the form or content of that information.
    93. BIAS also does not change the form or content of the 
information it transmits from a technical perspective. As we explain 
above, BIAS transmits the information of users' choosing because users 
decide what information should be placed in the packets that are 
transmitted. There is no change in the form or content of that 
information because the packet payload is not altered in transit. 
Although BIAS may use a variety of protocols to deliver information 
from one point to another, the fundamental premise of the internet is 
to enable the transmission of information without change in the form or 
content across interconnected networks, and any such changes would 
undermine that very functionality.
    94. It is therefore not the case, as some commenters at the time of 
the RIF Order contended and some commenters here repeat, that the 
processing or intelligence that is combined with the transmission 
component, and that may act upon a user's information for routing 
purposes, changes the form or content of that information. NCTA argues, 
for example, that while packet content may

[[Page 45424]]

not change, the packet switching architecture itself--``the breaking 
apart, routing, and reconfiguration of these packets''--``involves a 
`change in the form or content' of the information requested or sent by 
the user.'' Making a similar argument, CTIA uses streaming a video as 
an example, claiming that the ``significant information-processing, 
from transforming keystrokes and clicks into machine readable 
languages, to dividing information into packets, to intelligently 
routing those packets to a server close to the user, to retrieving and 
processing the video data for transmission,'' is what makes BIAS an 
information service. CTIA also suggests that the form of information 
transmitted by BIAS is changed because the ``coded information actually 
being transmitted looks quite different from anything the user would 
recognize.'' But the salient question under the statute is whether 
there is a change in form or content of the information ``as sent and 
received.'' The statutory focus thus is on either end of the 
transmission, irrespective of any processing that occurs in between. 
With data communications, while the information may be fragmented into 
packets and unintelligible to users while in transit, ``such 
fragmentation does not change the form or content, as the pieces are 
reassembled before the packet is handed over to the application at the 
destination,'' and thus the information is delivered to or from the 
desired endpoint as it was sent and therefore without a change in 
``form or content'' within the meaning of the statute. The Commission 
has found in other contexts that protocol ``processing'' involved in 
broadband transmission causes no net change in the form or content of 
the information being transmitted. CTIA erroneously argues that the 
Non-Accounting Safeguards Order (62 FR 2991 (Jan. 21, 1997)) held that 
all protocol processing is an information service while ignoring the 
Commission's finding that non-net protocol processing falls under the 
telecommunications systems management exception.
    95. NCTA's and CTIA's arguments also fail to acknowledge that BIAS 
is not unique or distinguished from processing and intelligent routing 
used by traditional telecommunications services. Mobile voice telephone 
service for example, relies on similar processing to support essential 
functions including mobile call routing, mobile paging, and handover 
between cellular towers. For circuit-switched calls on these networks, 
when a mobile user moves from one serving base station area to another 
serving base station area, the call is handed over from the current 
serving base station to the new serving base station with the help of 
the base station controller and the mobile switching center. Similarly, 
modern voice telephony (both fixed and mobile) can convert circuit-
switched voice transmissions into IP packets, route those packets using 
the same processing as a BIAS provider does, and convert those packets 
back to a circuit-switched format to deliver the call. Similar 
conversions historically have been present in other packet-switched 
transmission services as well. Contrary to NCTA's and CTIA's view, none 
of these services are or can be understood to fall outside the meaning 
of telecommunications on the theory that there is a change in the form 
or content of the information as sent or received. CTIA tries to 
distinguish voice and data services, arguing that ``the internet and 
PSTN are two fundamentally different networks'' because the internet 
uses packet switching to route data while the PSTN uses SS7 signaling 
to route calls, which it says explains why they ``are completely 
incompatible with each other and cannot directly interoperate.'' But 
CTIA does not explain why these distinct protocols and their 
incompatibility are independently relevant to classification 
determinations, and its argument merely underscores that both BIAS and 
voice networks involve inherent processing and signaling to ensure that 
information is efficiently and correctly routed. Indeed, given the 
prevalence of such technologies used in transmission, reaching a 
contrary conclusion effectively would suggest that no transmission 
services could ever be telecommunications, which could not have been 
what Congress intended. The only services that reclassification 
opponents argue include a net protocol conversion are certain forms of 
VoIP. But even assuming arguendo the merits of the commenters' 
technological description, they do not demonstrate that users of VoIP 
consider the conversion to effectuate material changes, let alone that 
they should inform our understanding of how BIAS users perceive that 
service, as relevant to the ``telecommunications'' definition.
    96. Our understanding of the ``telecommunications'' definition in 
this regard also is supported by the scope of services encompassed by 
the meaning of ``advanced telecommunications capability'' in section 
706 of the 1996 Act. The purported changes in form or content that some 
commenters associate with BIAS are no less likely to be associated with 
the accessing of ``high-quality voice, data, graphics, and video'' that 
Congress included within the scope of ``advanced telecommunications 
capability'' under section 706. This elicits harmonization within the 
1996 Act between the ``telecommunications'' definition and section 706, 
supporting our application of the ``telecommunications'' definition to 
BIAS here. Elsewhere, the Order interprets section 706 of the 1996 Act 
as a grant of regulatory authority. We make clear, however, that our 
consideration of section 706 in our analysis here does not depend on 
whether section 706 is understood as a grant of regulatory authority. 
Separately, we recognize that the RIF Order concluded that BIAS is made 
available ``via telecommunications'' by reference to an amorphous set 
of inputs that BIAS providers use when offering service. But even 
accepting that, it raises more questions than answers as far as section 
706 is concerned. For instance, it fails to address whether a BIAS 
provider's own use of telecommunications as an input into BIAS would be 
enough to bring it within the scope of section 706, and if so, whether 
the entirety of the service would fall within the scope or just those 
aspects--ill-defined by the RIF Order--that rely on telecommunications 
inputs. The RIF Order also fails to explain how those amorphous details 
about the underlying inputs used in BIAS could be a meaningful factor 
in understanding the ``telecommunications'' definition from a user 
perspective. Even if those questions had answers, we find our approach 
best harmonizes the ``telecommunications'' definition and the meaning 
of ``advanced telecommunications capability'' in section 706.
    97. The user perspective and functionality of BIAS is also 
consistent with the ordinary meaning of the words ``form'' and 
``content,'' as they were understood at the time of the 1996 Act's 
adoption. The word ``form'' was understood as ``a shape; an arrangement 
of parts,'' ``the outward aspect (esp. apart from colour) or shape of a 
body,'' or ``the mode in which a thing exists or manifests itself (took 
the form of a book)''; ``the shape or appearance of something'' or 
``the particular mode in which a thing or person appears: wood in the 
form of paper''; and ``the shape and structure of something as 
distinguished from its material.'' In support of its view, CTIA cites a 
recent Second Circuit case purporting to define ``form'' as ``pattern 
or schema,'' which we do not find to differ fundamentally from the 
definitions we provide from the time of the 1996 Act's passage. Thus, 
in the context of BIAS, the

[[Page 45425]]

question is whether the shape or appearance of the information being 
transmitted is changed. This might occur, for example, if BIAS 
manipulated the appearance of a website that a user is accessing or the 
presentation of the information that appears in an application--but it 
does not. When a user visits a website or uses an application, the 
information is presented in exactly the form intended by the content 
provider, and not a form determined by the BIAS provider. USTelecom 
also argues that content filtering and video optimization means that 
information transmission virtually never occurs ``without change in the 
form or content.'' Insofar as this involves ``content filtering,'' the 
filtered-out information is not information we consider the user to 
have chosen to receive in the first place. Similarly in the case of 
measures that guard against the distribution of malware, whether or not 
consumers must affirmatively opt-in to such services, the record 
provides no reason to believe that malware is information that BIAS 
users have chosen to receive. Additionally, USTelecom cites video 
optimization--e.g., to ``reduce the demand of high-resolution video on 
mobile devices with small screens, mobile operators optimize the 
content so as to consume less bandwidth.'' But such functionality 
likely falls within the telecommunications systems management exception 
to the information service definition, and in any event, USTelecom does 
not suggest that video optimization causes the desired video not to 
play, changes the content of the video as originally sent, or causes 
the content not to present to the user as a video. The relevant 
statutory question is whether a BIAS user would see video optimization 
as sufficient to constitute a change in the form or content of the 
information chosen by the user, and the record here does not make that 
case. As such, BIAS transmits the form of the information to and from 
an end user as it is sent. The same holds true for the ``content'' of 
the information, a term which was understood at the time of the 1996 
Act's adoption as ``the substance or material dealt with (in a speech, 
work of art, etc.) as distinct from its form or style''); ``the meaning 
or substance of a piece of writing, often as distinguished from its 
style or form''); ``substance, gist'' or ``meaning, significance.'' 
BIAS providers do not change the substance of a news article on a 
website, a social media post, the lyrics or melody of a streaming song, 
or the images that appear in a photograph or video, and thus BIAS 
providers do not change the content under the ordinary meaning of that 
term. ACA Connects argues that BIAS includes certain capabilities, 
namely retrieval and storage, that can fit within the information 
service definition even though they do not require net protocol 
conversion. But ACA Connects does not explain if the capabilities to 
which it is referring are actually offered by BIAS providers (as 
opposed to edge providers) or are different from those we already 
address in the Order. ACA Connects also does not appear to grapple with 
whether such capabilities--if indeed there are any we have not already 
addressed--would fall under the telecommunications systems management 
exception or are otherwise separable. In any event, that some 
information-processing capabilities do not necessarily change the form 
or content of information only further demonstrates that when 
information-processing capabilities facilitate the use of BIAS, they do 
not inherently cause BIAS to change the form or content of the 
information it transmits.
b. BIAS Is a Telecommunications Service
    98. BIAS is a ``telecommunications service'' because consumers 
perceive it--and BIAS providers market it--as a standalone ``offering'' 
of telecommunications that is separate and distinct from the 
applications, content, and services to which BIAS provides access, and 
which are generally information services offered by third parties. BIAS 
providers also market BIAS directly to the public for a fee, and it 
therefore is not a private carriage service.
    99. Consumers Perceive BIAS as a Standalone Offering of 
Telecommunications. As evidenced in the record, there is wide 
agreement, among both supporters and even some opponents of 
reclassification, that consumers today perceive BIAS to be a 
telecommunications service that is primarily a transmission conduit 
used as a means to send and receive information to and from third-party 
services. The D.C. Circuit recognized this in 2016, when it stated that 
``[e]ven the most limited examination of contemporary broadband usage 
reveals that consumers rely on the service primarily to access third-
party content.'' Since that time, this consumer perception of BIAS as a 
gateway to third-party services has only become more pronounced. The 
dramatic increase in consumers' reliance on BIAS to participate in 
vital aspects of daily life during the COVID-19 pandemic set in stark 
relief the central--and critical--importance of using BIAS to access 
third-party services. And, as Home Telephone notes, while a consumer 
``may decide to use edge services provided by the ISP, . . . the 
consumer certainly is not expecting the ISP to dictate the edge 
services available to them when subscribing to BIAS.'' It is thus 
clearer now, more than ever before, that consumers view BIAS as a 
neutral conduit (or, in the words of one commenter, a ``dumb pipe'') 
through which they may transmit information of their choosing, between 
or among points they specify, ``without change in the form or content 
of the information as sent and received,'' and ``not as an end in 
itself.'' It is also clear from the record that the third-party 
services themselves rely on the neutral-conduit property of BIAS to 
reach their customers. Netflix emphasizes that ``[their] members . . . 
depend on an open internet that ensures that they can access our 
content and the content of many other companies through their ISP's 
networks without interruption.''
    100. BIAS Providers Market BIAS as a Standalone Offering of 
Telecommunications. We also find that BIAS providers market BIAS as a 
telecommunications service that is essential for accessing third-party 
services, and this marketing has become more pronounced during and 
since the COVID-19 pandemic. In the 2015 Open Internet Order, the 
Commission concluded that BIAS providers market their BIAS ``primarily 
as a conduit for the transmission of data across the internet,'' with 
fixed providers distinguishing service offerings on the basis of 
transmission speeds, while mobile providers advertise speed, 
reliability, and coverage of their networks. Although the RIF Order 
contended that ``ISPs generally market and provide information 
processing capabilities and transmission capabilities together as a 
single service,'' it did not provide examples. BIAS providers' 
marketing today appears even more focused than in 2015 on the 
capability of BIAS to transmit information of users' choosing between 
internet endpoints, rather than any capability to generate, acquire, 
store, transform, process, retrieve, utilize, or make available that 
information. Such marketing emphasizes faster speeds aimed at 
connecting multiple devices, unlimited data for mobile service, and 
reliable and secure coverage. INCOMPAS notes that ``some mobile BIAS 
providers offering 5G services are now marketing their network capacity 
to serve the fixed BIAS marketplace.'' Public Knowledge notes that 
``[a] brief

[[Page 45426]]

survey of television and online advertising for both mobile and fixed 
broadband shows that ISPs compete with each other on the basis of 
speed, price, ease of use, reliability and availability.'' In those 
cases where BIAS providers mention edge provider services, they often 
advertise them as separate offerings that can be bundled with or added 
on to their broadband internet access services, such as discounted 
subscriptions to unaffiliated video and music streaming services or 
access to mobile security apps.
    101. BIAS Providers Market BIAS Directly to the Public for a Fee. 
The concept of the ``offering'' within the telecommunications service 
definition is based on the principles of common carriage. If the 
offering meets the statutory definition of ``telecommunications 
service,'' then the Act makes clear that a provider ``shall be treated 
as a common carrier'' under the Act ``to the extent that it is engaged 
in providing'' such a service. The Commission also has interpreted the 
language of the ``telecommunications service'' definition in such a way 
that meeting that definition also necessarily means the service meets 
the definition of a common carrier service. We note that a service can 
be a telecommunications service even where the service is not held out 
to all end users equally.
    102. The record does not dispute that BIAS providers market BIAS 
directly to the public for a fee. This factual reality aligns with our 
definition of BIAS as a mass-market retail service as such services are 
necessarily offered to the public for a fee. Because BIAS providers do 
in fact offer BIAS as a mass-market retail service, we conclude, as the 
Commission did previously, that BIAS is not a private carriage 
offering. Because the RIF Order concluded that BIAS was an information 
service, it did not need to reach the question of whether any aspect of 
the BIAS transmission offering was common or private carriage. We note 
that no party argues that BIAS is offered on a private carriage basis. 
While ADTRAN argues that the Commission permits ``a carrier to choose 
how to structure its offerings and decide whether to operate as a 
common carrier or a private carrier,'' it does not argue that any 
particular BIAS offering is structured as a private carriage service.
    103. Additionally, since we conclude below that BIAS includes the 
exchange of traffic by an edge provider or an intermediary with the 
BIAS provider's network (i.e., peering, traffic exchange or 
interconnection), we again conclude that the implied promise to make 
arrangements for such exchange does not make the traffic exchange 
itself a separate offering from BIAS--private carriage, or otherwise. 
Even if a traffic exchange arrangement involves some individualized 
negotiation, that does not change the underlying fact that a BIAS 
provider holds the end-to-end service out directly to the public. We 
again conclude that some types of individualized negotiations are 
analogous to other telecommunications carriers whose customer service 
representatives may offer variable terms and conditions to customers in 
circumstances where the customer threatens to switch service providers. 
Therefore the end-to-end service remains a telecommunications service.
2. BIAS Is Not an Information Service
    104. We find that BIAS, as offered today, is not an information 
service under the best reading of the Act because it is not itself 
``the offering of a capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available 
information via telecommunications.'' Rather, BIAS functions as a 
conduit that provides end users the ability to access and use 
information services that provide those capabilities. DNS, caching, and 
other information-processing capabilities, when used with BIAS, either 
fall within the telecommunications systems management exception to the 
definition of ``information service,'' or are separable information 
services not inextricably intertwined with BIAS, or both, and therefore 
do not convert BIAS into an information service. Additionally, BIAS is 
not perceived by consumers or marketed by BIAS providers as an 
information service.
a. BIAS Does Not Offer the Capability To Process Information in the 
Ways Provided in the Act
    105. Information services are applications whose information 
payload is transmitted via telecommunications. These applications 
provide end users with the capability to process the information they 
send or receive via telecommunications in the ways Congress specified 
in the information service definition, including the capability to: 
``generate'' and ``make available'' information to others through email 
and blogs; ``acquire'' and ``retrieve'' information from sources such 
as websites, online streaming services, and file sharing tools; 
``store'' information in the cloud; ``transform'' and ``process'' 
information through image and document manipulation tools, online 
gaming, cloud computing, and machine learning capabilities; ``utilize'' 
information by interacting with stored data; and publish information on 
social media sites. We use the term ``process'' to reference all the 
terms described in the information service definition: generating, 
acquiring, storing, transforming, processing, retrieving, utilizing, or 
making available. In all these respects, information services are the 
platforms that edge providers offer today. Furthermore, all these 
information services are completely distinct from the conduit--i.e., 
the telecommunications--via which the payload for these services is 
sent and received. Although BIAS providers may separately offer some of 
these services to their subscribers, the information services most 
often accessed by users are provided by third parties. Below we discuss 
how certain such services can be used for the management, control, and 
operation of a telecommunications system or management of a 
telecommunications service, and how in those instances, those services 
fall into the telecommunications systems management exception to the 
information service definition.
    106. ACA Connects argues that since ``information services by 
definition are offered `via telecommunications,' . . . just because a 
service has a material transmission component does not necessarily mean 
it is a telecommunications service.'' We acknowledge in our discussion 
of precedent that information services are offered ``via 
telecommunications'' and that the existence of a material transmission 
component does not necessarily render a service a telecommunications 
service, but the classification of a service depends on the how 
consumers understand it and the factual particulars of how the 
technology functions. As we explain at length, BIAS is best classified 
as a telecommunications service because consumers perceive it as such 
and because the transmission component has a distinct identity from any 
information-processing capabilities. By contrast, ACA Connects 
diminishes, if not ignores, the core nature of the transmission 
component to BIAS. Moreover, ACA Connects' entire claim that BIAS is an 
information service offering ``via telecommunications'' rests entirely 
on its assertion that BIAS is an offering of DNS, caching, and third-
party information service offerings. But the service BIAS providers 
offer that we are classifying is BIAS, and as we explain herein, BIAS 
is not those other services.

[[Page 45427]]

    107. The RIF Order and its proponents who commented in this 
proceeding engage in analytical gymnastics in an attempt to fit BIAS 
into the definition of ``information service.'' We are unconvinced. 
They first claim that BIAS itself offers subscribers the ability to 
process information in the ways prescribed by Congress's information 
service definition. This claim simply rehashes old arguments about the 
integration of DNS, caching, or other information-processing 
capabilities into BIAS offerings, which we address below. For its own 
part, the RIF Order arbitrarily found that the term ``capability'' is 
``broad and expansive'' and then used that understanding to reach the 
conclusion that the information service definition encompasses BIAS. 
But the RIF Order's focus was misplaced. The question is not how broad 
the meaning of ``capability'' is, but what the service itself has the 
capability to do. As even the RIF Order makes clear, BIAS does not 
itself have the capability to process information in the ways the 
statute prescribes, it only ``has the capacity or potential ability to 
be used to engage in the activities within the information service 
definition.'' The RIF Order tries to prop up its flawed analysis by 
claiming that the ``fundamental purposes'' of BIAS are ``for its use 
in'' processing information in the ways described in the information 
service definition and that BIAS was ``designed and intended'' to 
perform those functions. But this claim amounts to nothing more than 
statutory eisegesis: reading words into the definition of ``information 
service'' that are not there to reach the RIF Order's predetermined 
outcome. Having the ``fundamental purpose'' or being ``designed and 
intended'' to do something does not mean a service actually has the 
capability to do that thing. In any event, the fundamental purpose of 
BIAS is to serve as a conduit through which users can access and use 
the applications we describe above that are themselves information 
services. Put differently, a consumer with a BIAS connection could not 
generate, acquire, store, transform, process, retrieve, utilize, or 
make available information using that connection if those applications 
did not exist. We thus disagree with ACA Connects' conflation of the 
service offered by edge providers and the service offered by BIAS 
providers.
    108. The RIF Order's expansive reading of ``capability'' also 
logically sweeps into the information service definition a category of 
services that is objectively different and obliterates the statutory 
distinction between telecommunications services and information 
services. For instance, under the RIF Order's conception of information 
services, the broadband internet access services provided by BIAS 
providers like Comcast, Verizon, and AT&T are classified as the same 
type of services provided by edge providers like Netflix, DuckDuckGo, 
and Wikipedia. But that defies reality. Furthermore, if the RIF Order's 
framework was followed through to its logical conclusion, even the most 
obvious of telecommunications services, traditional switched telephone 
service, would be classified as an information service, as it provides 
customers with the ability to make information available to others 
(e.g., public service announcements), retrieve information from others 
(e.g., through a simple phone call with another person), and utilize 
stored information from others (e.g., by interacting with a call menu 
or accessing voice mailbox services). The RIF Order tries to get around 
this problem by comparing the ``design,'' ``functionality,'' 
``nature,'' and ``purpose'' of traditional telephony and BIAS, and then 
concluding that because they are different, BIAS cannot be a 
telecommunications service. But Congress did not design the Act's 
definitional terms to preclude the Commission from ever classifying new 
offerings that differ from traditional telephony as telecommunications 
services. If Congress had intended to foreclose that option, it could 
have easily done so. Rather the Act simply provides the Commission with 
statutory definitions for ``telecommunications service'' and 
``information service'' with which the Commission can make 
classification determinations on an ongoing basis. As discussed above, 
the better reading of these definitions makes clear that BIAS is a 
telecommunications service as defined by the 1996 Act.
    109. We are also unpersuaded by the RIF Order's contention, and 
that of some commenters in this proceeding, that BIAS is an information 
service by virtue of its provision of access to third-party information 
services. For instance, NCTA points to the U.S. Supreme Court's 
statement that, ``[w]hen an end user accesses a third-party's website, 
. . . he is equally using the information service provided by the cable 
company that offers him internet access as when he accesses the 
company's own website . . .'' However, the Court's statement stemmed 
from its affirmation of the reasonableness of the Commission's 
``understanding of the nature of cable modem service,'' as offered at 
the time, an understanding which we do not find applicable to BIAS as 
offered today. This argument conflates the critical distinction between 
the information services that are typically offered by third parties 
and are not part of the BIAS offering itself with the 
telecommunications services that BIAS providers offer to their 
customers. In doing so, the RIF Order and its supporters largely 
eliminate the category of ``telecommunications services'' established 
in the Act, which Congress could not have intended. Congress would not 
have devised a scheme where the definition of ``information service'' 
would largely moot the ``telecommunications service'' definition or 
confine it only to telephone service, particularly when Congress was 
aware that non-telephone transmission services had been offered for 
years under the Computer Inquiries as basic services. Specifically, 
under the RIF Order's framework, all telecommunications offerings used 
to access third-party information services that themselves have the 
``capability'' to ``store'' or ``transform'' information would 
logically be transformed into information services. Such a conclusion 
would be inconsistent with Commission precedent. But the Commission has 
never, until the RIF Order, imputed the capabilities of such third-
party information services to the telecommunications services that 
provide access to them. The RIF Order implicitly acknowledges the 
absurdity of this argument in finding the need to clarify that 
information services accessed via traditional telephone service do not 
convert that telephone service into an information service.
b. DNS and Caching, When Used With BIAS, Fall Within the 
Telecommunications Systems Management Exception
    110. We find that information-processing capabilities, such as DNS, 
caching, and others, when used with BIAS, fall within the 
telecommunications systems management exception to the definition of 
``information service.'' The Act excludes from the definition of 
information service the use of information-processing capabilities 
``for the management, control, or operation of a telecommunications 
system or the management of a telecommunications service.'' We refer to 
this as the ``telecommunications systems management exception.'' BIAS 
providers sometimes use information-processing capabilities, such as 
DNS and caching, to manage, control, and operate the telecommunications 
system

[[Page 45428]]

they operate and the telecommunications service they offer. Thus, when 
BIAS providers use DNS, caching, and other information-processing 
capabilities in that way, those services fall within the 
telecommunications systems management exception and therefore do not 
serve to convert the entire BIAS offering into an information service. 
ACA Connects suggests that we ``disregard or downplay information 
processing capabilities'' used by BIAS providers even though we provide 
a fulsome analysis herein of the role those capabilities play in the 
provisioning of BIAS. At the same time, in its filings, ACA Connects 
disregards or downplays the existence of the telecommunications systems 
management exception and how it applies to those capabilities.
    111. We disagree with those commenters who argue that we should 
treat the transmission component of BIAS differently than the complete 
BIAS offering that often uses information-processing capabilities, like 
DNS and caching, to facilitate competition and achieve policy goals. 
For instance, ADTRAN advocates that we give BIAS providers a choice 
between complying with Title II requirements from which we do not 
forbear and our open internet rules for their BIAS offerings, or 
alternatively offering the transmission component of BIAS as a separate 
service subject to Title II regulation. And Mitchell Lazarus advocates 
that the Commission institute a Title II regime for the transport 
component of BIAS and forbear from all Title II regulation except a 
requirement that facilities-based ISPs open their facilities to 
competing ISPs. Both these proposals share the same fault in that they 
fail to recognize that the entire BIAS offering is best classified as a 
telecommunications service, as we explain in the Order. Because we 
already have identified a legally sound approach to address the issues 
taken up in the Order we are not persuaded that we should instead take 
these approaches, which these commenters recognize would likely 
necessitate that we defer action and issue a further notice of proposed 
rulemaking to address the practical details of these alternative 
approaches. And at least to the second proposal, it would likely compel 
all BIAS providers to separately offer the transmission component of 
BIAS as a telecommunications service, but the Commission, in 2017, 
expressed doubt about its ``statutory authority to compel common 
carriage offerings . . . if the provider has not voluntarily'' offered 
such a service itself.
    112. We find that DNS, caching, and other services the BIAS 
providers use with their BIAS offering comfortably fit within the 
telecommunications systems management exception, either because they 
are used to manage a telecommunications service; used to manage, 
control, or operate a telecommunications system; or both. Even if 
specific capabilities might seem most naturally to fit in one category 
or another, so long as they ultimately fit within the 
telecommunications systems management exception as a whole--which we 
find to be the case for all the capabilities at issue here--we need not 
precisely identify the specific category. We reach this conclusion by 
evaluating these services under the exception based on the text, 
structure, and context of the Act in light of the functionality of the 
service, how the service is offered, and how consumers perceive the 
service. We also take into consideration the harmonization of the 1996 
Act's definitional framework with the pre-1996 Act classification 
framework, as we discuss in greater detail below.
    113. The text, structure, and context of the Act reveal that the 
telecommunications systems management exception operates in the 
aggregate to exempt from the ``information service'' definition those 
capabilities that facilitate the operation of the telecommunications 
system and the telecommunications service offered or provided on such 
system. While ``telecommunications service'' is a statutorily defined 
term, ``telecommunications system'' is not. Based on a number of uses 
of ``system'' in the Act, as well as the ordinary meaning of 
``system,'' we find that ``telecommunications system'' is best 
understood as the facilities, equipment, and devices that a provider 
uses in a network to offer or provide telecommunications services. 
Definitions from specialized sources provide similar definitions. Thus, 
management of a telecommunications service necessarily is closely 
interrelated with the management, control, and operation of the 
underlying network, equipment, and facilities used to offer or provide 
that service. While ``manage,'' ``control,'' and ``operate'' each have 
independent meanings, their ordinary meanings substantially overlap. We 
find that these terms are therefore best viewed as sweeping into the 
exception any uses of information-processing capabilities with the 
telecommunications service or telecommunications system that satisfy 
that aggregate understanding, regardless of whether one might think 
they are better categorized within one of those terms or another. Read 
together, we find that these terms are meant to encompass the full 
scope of how a provider may use information-processing capabilities to 
manage a telecommunications service or manage, control, or operate a 
telecommunications system. Consequently, we ultimately need not resolve 
the precise contours of the individual terms in order to determine the 
proper classification of BIAS, and we elect not to do so at this time 
because such decisions could have broader implications for other 
classification decisions outside the context of this proceeding.
    114. When evaluating information-processing capabilities under the 
telecommunications systems management exception, it is immaterial that 
a service may benefit consumers as well as providers. As the D.C. 
Circuit affirmed in USTA, the relevant question for determining whether 
a service falls within the exception is whether ``a carrier uses a 
service that would ordinarily be an information service--such as DNS or 
caching--to manage a telecommunications service'' or to manage, 
control, or operate a telecommunications system. Inevitably, a 
capability used to manage a telecommunications service or manage, 
control, or operate a telecommunications system will provide benefits 
to the provider, but the provider may also choose to use such 
capabilities to benefit consumers. Indeed, a service that facilitates 
the use of the system and service may provide better resource 
management for the provider and a better experience for the consumer. 
The relative benefit to providers and to consumers falls on a spectrum, 
rather than being a bright line distinction. It is therefore not the 
case, as the RIF Order claimed and some commenters reassert, that the 
primary or exclusive benefit of a service that falls within the 
telecommunications systems management exception must be directed to the 
providers' operations.
    115. DNS Falls Within the Telecommunications Systems Management 
Exception. We conclude that DNS, when used with BIAS, falls within the 
telecommunications systems management exception to the definition of 
``information service.'' As explained in the 2015 Open Internet Order, 
DNS, when offered on a standalone basis by third parties, is likely an 
information service. DNS ``is most commonly used to translate domain 
names, such as `nytimes.com,' into numerical IP addresses that are used 
by network equipment to locate the desired

[[Page 45429]]

content.'' We note, as we did in 2015, that although a BIAS provider's 
DNS server may offer other functionalities, BIAS does not depend on 
such functionalities and therefore they are separable from BIAS. By 
analogy, just as a telephone book or 411 directory assistance service 
enables customers of telephone service to ascertain the telephone 
number of a desired call recipient, DNS enables customers of BIAS to 
ascertain the IP address of a desired internet endpoint. DNS may still 
be considered analogous to an adjunct-to-basic service that would not 
impact the classification of the transmission service under Commission 
precedent, given that it facilitates use of BIAS and does not alter the 
fundamental character of BIAS. DNS uses computer processing to convert 
the domain name that the end user enters into an IP address number 
capable of routing the communication to the intended recipient. In 
addition to providing benefits to consumers, a BIAS provider's DNS 
service benefits the provider, as it ``may significantly reduce the 
volume of DNS queries passing through its network'' and can be employed 
by BIAS providers for ``load balancing'' and enabling efficient use of 
limited network resources during periods of high traffic or congestion. 
We thus agree with the 2015 Open Internet Order's conclusion that DNS 
``allows more efficient use of the telecommunications network by 
facilitating accurate and efficient routing from the end user to the 
receiving party.''
    116. USTelecom argues that because DNS is ``undeniably [an] 
information service[ ] when offered by third parties,'' we cannot also 
conclude that same service is used for telecommunications management by 
BIAS providers. It contends that Brand X's holding--that the statutory 
definitions do not distinguish between facilities-based and non-
facilities-based carriers but on the capabilities the provider offers 
via the service--forecloses that conclusion. We disagree. As the 
statute's text makes clear, the telecommunications systems management 
exception explicitly provides that information-processing capabilities 
are not information services when they are used for the purposes of 
managing a telecommunications service or managing, controlling, or 
operating a telecommunications network. Thus, the purpose for which a 
capability is used is key to evaluating the capability under the 
exception. We note that USTelecom attempts to relitigate an argument 
that was settled by the D.C. Circuit in USTA. We are not persuaded to 
depart from the court's understanding as reflected in USTA. In the case 
of DNS, ``[i]t is important to distinguish between a DNS server 
operated by a broadband provider and a DNS server operated by an 
unaffiliated entity, as they have different reasons for operating a DNS 
server.'' While DNS offered by a third party likely does not fall 
within the exception because the third party is not ``us[ing] . . . 
such capability for the management, control, or operation of a 
telecommunications system or the management of a telecommunications 
service,'' the fact that BIAS providers use DNS to manage BIAS or 
manage, control, or operate their BIAS networks causes it to fall 
within the exception.
    117. Caching Falls Within the Telecommunications Systems Management 
Exception. We conclude that caching, when used with BIAS, falls within 
the telecommunications systems management exception to the definition 
of ``information service.'' Caching ``is the storing of copies of 
content at locations in a network closer to subscribers than the 
original source of the content.'' BIAS providers use caching ``to 
facilitate the transmission of information so that users can access 
other services, in this case by enabling the user to obtain `more rapid 
retrieval of information' through the network,'' and thereby offer 
faster BIAS to consumers. A BIAS provider also uses caching for a 
number of internal benefits, including ``to decrease its own 
bandwidth'' and for ``capacity management,'' so that the strain of 
subscribers' traffic on certain network segments or equipment is 
reduced, and to ``reduce its own transit costs, because cached 
information need[ ] not be retrieved across a tier-1 backbone 
network.'' Indeed, Verizon currently describes its caching of video 
content as ``network management.'' We are therefore unpersuaded by 
assertions that caching is used primarily or exclusively to benefit end 
users, and for the reasons provided above, disagree that any benefits 
to users disqualify caching from the telecommunications systems 
management exception. Richard Bennett similarly argues that caching 
falls outside the exception because it ``does not affect the 
transmission rate of bits on the network medium.'' But Richard Bennett 
does not point to any statutory language or Commission precedent that 
requires a service to ``affect the transmission rate of bits'' in order 
to fall within the exception. For these reasons, we conclude that 
caching, when offered by a BIAS provider, falls within the 
telecommunications systems management exception to the definition of 
information service.
    118. Caching used by BIAS providers is distinct from content 
delivery network (CDN) caching. CDNs are a ``system of computers 
networked together across the internet that cooperate transparently to 
deliver content to end users, in order to improve performance, 
scalability, and cost efficiency.'' These servers, typically owned and 
managed by third-party CDN providers and not BIAS providers, cache edge 
provider content close to BIAS subscribers to improve subscribers' load 
times. As explained in the 2015 Open Internet Order, CDNs, when offered 
on a standalone basis, such as by third parties, likely provision an 
information service. As discussed below, we exclude third-party CDNs 
from the scope of BIAS. One commenter references an amicus brief to 
argue that caching ``is not a network management function'' because 
``caching is often done not by BIAS providers, but by third parties.'' 
This only serves to demonstrate how dispensable caching is to the 
provisioning of BIAS and highlights how a service can fall within the 
telecommunications systems management exception when used by a provider 
to provision a telecommunications service and not fall within the 
exception when it is used for another purpose.
c. Information-Processing Capabilities Are Not Inextricably Intertwined 
With BIAS
    119. Even if, arguendo, DNS, caching, and other information-
processing capabilities did not fall within the telecommunications 
systems management exception to the definition of ``information 
service,'' BIAS providers offer these capabilities as separate 
components that are not inextricably intertwined with BIAS, and 
therefore they do not convert BIAS into an information service.
    120. Whether an information service is inextricably intertwined 
with a telecommunications service turns principally on whether users 
view the offering as a bundle of a telecommunications service and one 
or more information services or instead as a single integrated offering 
that is an information service. Users' perception of the offering can 
be supported by a functional evaluation focused on whether the 
information service components are separable from the 
telecommunications service components. Thus, the mere act of bundling 
an information service with a telecommunications service, does not, on 
its own, automatically cause the services to become inseparable or 
inextricably intertwined. In this case,

[[Page 45430]]

the evidence of consumer perception and the separability of the 
functions at issue both point to one conclusion--BIAS is not an 
integrated information service. To the extent that prior Commission 
decisions suggested that an ``inextricably intertwined'' analysis was 
an independent prerequisite to a telecommunications service 
classification, we are now changing course in light of our evaluation 
of the statute.
    121. We base our conclusion first and foremost on an examination of 
the consumer perception of the BIAS offering, which shows that 
consumers do not perceive the offering as an information service. We 
also examine the role that DNS, caching, and other information-
processing capabilities functionally play in provisioning BIAS today 
and find that they are separable. We reiterate the factual reality that 
the core element of BIAS, as offered by BIAS providers today, is the 
transmission component. Our definition of BIAS, remaining unchanged 
since 2010, makes clear that the ``data transport service,'' or 
``telecommunications component,'' and BIAS are indeed one in the same. 
Without the transmission component, BIAS, as offered today, would be no 
service at all. As we elaborate below, the same cannot be said for DNS, 
caching, and other information-processing capabilities, and thus they 
cannot reasonably be viewed to convert the core, indispensable 
transmission component of BIAS into an information service. We thus 
disagree with commenters who argue that the RIF Order's approach to 
understanding inextricably intertwined services ``best implements the 
Commission's long-standing view that Congress intended the definitions 
of `telecommunications service' and `information service' to be 
mutually exclusive.'' That reasoning is tautological, relying on the 
assumption that BIAS is an information service on the basis that it 
combines information-processing capabilities and a transmission 
component, and ignores our showing here that the information-processing 
capabilities fall within the telecommunications systems management 
exception, are separable information services, or both. We also discuss 
below that the availability of those services from third parties, and 
the use of those third-party services by consumers, demonstrate that 
BIAS providers' DNS and caching components are neither integral nor 
indispensable to their provisioning of BIAS. Given consumer perception 
and these functional realities, DNS, caching, and other information-
processing capabilities cannot be inextricably intertwined with BIAS 
and therefore they do not convert BIAS into an integrated information 
service.
    122. The RIF Order tried to fortify its information service 
classification by asserting that DNS, caching, and other information-
processing capabilities are inextricably intertwined with the 
transmission component of BIAS, thereby transforming BIAS into a 
single, functionally integrated information service--and some 
commenters in this proceeding endorse that proposition. But the RIF 
Order treated its ``inextricably intertwined'' analysis as entirely 
separate and distinct from the question of how users perceive the 
relevant ``offer'' without identifying any statutory basis for doing 
so. Even relying on this narrow analysis, the RIF Order reached the 
wrong conclusion. Although the RIF Order recognized that ``the internet 
marketplace has continued to develop in the years since the earliest 
classification decisions,'' it failed to give ``serious technological 
reconsideration and engagement'' to those new factual developments. 
Instead, the RIF Order found that DNS and caching, specifically, were 
``indispensable functionalit[ies] of broadband internet access 
service'' at the time the RIF Order was adopted. At the same time, the 
RIF Order tried to downplay the primacy of the transmission component 
in the BIAS offering. But ``the Commission's exclusive reliance on DNS 
and caching blinkered itself off from modern broadband reality, and 
untethered the service `offer[ed]' from both the real-world marketplace 
and the most ordinary of linguistic conventions.'' As Judge Millett 
wrote in her concurrence to the D.C. Circuit's decision in Mozilla, 
``the roles of DNS and caching themselves have changed dramatically 
since Brand X was decided. And they have done so in ways that strongly 
favor classifying broadband as a telecommunications service, as Justice 
Scalia had originally advocated.''
    123. Consumers Do Not Perceive BIAS as an Information Service. 
Contrary to record assertions, consumers do not perceive BIAS as an 
information service. As an initial matter, the record does not show 
that consumers perceive information-processing capabilities, such as 
DNS and caching, let alone understand those capabilities as information 
services and thereby view the entire BIAS offering as an information 
service based on those capabilities. Of the consumers that do perceive 
these information-processing capabilities, they are likely the 
consumers that would configure their system to obtain these 
information-processing capabilities from third parties and therefore 
view them as a separate offering. In its reply, CTIA claims, without 
evidence, that ``[c]onsumers also know that BIAS offer[s] these 
[information service] capabilities--that is why they purchase BIAS--and 
that BIAS relies on advanced under-the-hood technologies, regardless of 
whether they understand the precise mechanics of those technologies, 
such as advanced DNS, caching, protocol translation, dynamic network 
management, and other evolving services.'' But CTIA undercuts this 
claim about consumer perception in a later filing where it and 
USTelecom assert that nearly all consumers ``do not even know what DNS 
does.'' Moreover, unlike the situation with ISPs of 30 years ago, 
today's BIAS consumers do not purchase BIAS to receive an all-in-one 
suite of information services offered by their provider, or to gain 
access to a ``walled garden'' of internet endpoints cached by their 
provider. Instead, as already explained, consumers' desired information 
services are generally the applications, content, or services offered 
by third-party edge providers across the global internet that provide 
end users with the capability to process the information they send or 
receive via the BIAS provider's telecommunications. Consumers view 
these information services as completely distinct and separable from 
the transmission conduits offered by BIAS providers today. Consumers 
understand that when they access Netflix or an Apple iCloud storage 
account, the BIAS provider is ``offering'' the ``capability'' to access 
these third-party services, and not that these information services are 
being offered by the BIAS provider itself. While consumers may ``highly 
value'' the ability to access third-party services using their BIAS 
connections, that does not support a conclusion that BIAS is an 
information service. The RIF Order's primary argument that consumers 
perceive BIAS as an information service rests on its misunderstanding 
that DNS and caching convert BIAS into an information service rather 
than fall into the telecommunications systems management exception, as 
we establish above. Additionally, consumers' relationship with their 
BIAS providers is distinct from their relationships with edge 
providers. Most consumers have relationships with one or two BIAS 
providers--e.g., one for fixed residential service and one for mobile 
service--to gain access to the internet. Conversely, consumers may have 
relationships with dozens or even hundreds of edge

[[Page 45431]]

providers to utilize the wide range of services that ride over the top 
of their BIAS connections.
    124. Accordingly, we are unconvinced by USTelecom's assertion that 
its consumer surveys show we are wrong to conclude that consumers 
perceive BIAS as a telecommunications service and not an information 
service. USTelecom relies on two consumer surveys to support its 
assertion. The first survey purports to show that 92% of consumers 
perceive broadband as providing information service capabilities, while 
only 8% of respondents said their broadband service offers only the 
capability to transmit information between or among points of their 
choosing. The second survey purports to remedy the faults of the first, 
but it not only fails to do so, it serves to further undermine the 
first survey. The first survey suffers from two primary faults. To 
start, the results are misleading because the survey was weighted by 
providing four ``information service'' options to one 
``telecommunications service'' option and the respondents' information 
service selections were aggregated. USTelecom argues that ``a question 
structure that offers multiple information service capability options, 
while directing respondents to select all that apply, does not bias the 
results.'' But when there are only two categories to begin with, 
providing one option for one category and four options for the other 
objectively biases the results. That fact is very clearly proven by the 
results of the second survey, which provided one option for the 
information service category and had a wildly different result. 
Specifically, while in the first survey, ``59% of respondents selected 
at least one information service option without also selecting the 
telecommunications service option,'' in the second survey, only 10.8% 
of respondents selected the information service option without also 
selecting the telecommunications service option. Returning to the first 
survey, the second fault is that the terminology it used misrepresented 
the statutory language by suggesting that BIAS itself has the 
capability to perform the functions listed in the statute, and also 
used plain English language for the so-called ``information service'' 
options while using more technical language for the 
``telecommunications service'' option. USTelecom claims ``[t]hat is not 
a valid criticism of the survey. . . .'' But to suggest that the 
reliability of the survey does not depend on the formulation of the 
questions is not only fallacious, it is proven wrong by the second 
survey. While both surveys profess to measure consumer perception of 
broadband, their different question formulations result in markedly 
different results. Both surveys share the same additional fault in that 
they fail to treat the telecommunications service and information 
service categories as mutually exclusive, as we must. Thus, far from 
clarifying consumers' perception about BIAS, the results from the two 
surveys, and their shortcomings, only demonstrate that they cannot be 
viewed as reliable sources of consumer perception of BIAS. However, it 
is worth noting, given the importance of evaluating consumer perception 
of the offering, as established by the Supreme Court in Brand X and 
consistently affirmed by Commission and court precedent, that 
USTelecom's surveys do not show that consumers perceive BIAS as an 
information service, as opponents of reclassification would have us 
conclude. Indeed the second survey, which used more reliable question 
and answer formulations than the first, shows that more consumers 
perceive BIAS as providing the capabilities of a telecommunications 
service than providing the capabilities of an information service.
    125. Consumer perception is also backed by BIAS providers' 
marketing practices, which also do not show, as some commenters claim, 
that BIAS is best understood as an information service. Contrary to 
NCTA's contention, BIAS providers' marketing practices do not support a 
conclusion that they compete on the basis of their offering of ``online 
storage, spam filters, [or] security protections,'' for example. While 
consumers may be ``aware of and value'' the features offered by their 
BIAS providers, and some of these features also may be mentioned in 
BIAS providers' advertising, that does not undercut the significant 
evidence that BIAS providers predominantly market BIAS as a 
transmission service. We also agree with Public Knowledge that ``BIAS 
provider[s'] various attempts to enter adjacent markets or bundle 
services with broadband do not change the nature of the service they 
offer, no[r] do they change `what the consumer perceives to be the 
integrated finished product.' '' ACA Connects argues that the 
``marketing of broadband service has not undergone substantial change 
since the inception of the service,'' and that such marketing ``has 
always emphasized both the always-on capabilities that broadband 
service affords subscribers, including the ability to retrieve, store, 
and utilize the panoply of available internet content and applications, 
and the fast speeds at which they are able to stream, download, and 
upload internet content.'' However, ACA Connects deflects from its 
failure to provide evidence to support such sweeping claims by adding 
that, ``[t]o the extent that our Members' marketing may place a greater 
emphasis on speed, this is a response to increased consumer familiarity 
with the capabilities offered by broadband service.'' We are not 
convinced. We find that a more reasonable conclusion drawn from BIAS 
providers' marketing practices is that consumers select a BIAS provider 
based on the quality of its transmission service offering, and thus 
BIAS providers compete on this basis.
    126. We note that at least one of ACA Connects' members, Sjoberg's 
Cable TV, does not appear to emphasize or even mention any of the 
information-service capabilities in its advertisement for BIAS. Indeed, 
ACA Connects' own members state that their ``current marketing focuses 
on differentiating ourselves from our competitors by touting the speeds 
and process of our service packages'' and ``[t]he marketing of our 
broadband services puts primary emphasis on the speeds we offer, 
network reliability, and performance.'' ACA Connects attempts to 
preserve its argument by asserting that ``it is unremarkable that 
broadband providers emphasize . . . speeds and reliability . . . while 
ignoring basic information-processing capabilities'' because that 
advertising choice does not undermine its assertion that the 
information-processing capabilities are integrated into the offering. 
But the question here is what consumers perceive to be the offering, 
and in part due to the focus of BIAS providers' advertising on factors 
critical to transmission of information, consumers perceive the 
offering as a telecommunications service. Whether information-
processing capabilities are integrated is a question of functionality 
that we discuss below.
    127. DNS Is Not Inextricably Intertwined with BIAS. In reviewing 
the factual particulars of how DNS is functionally provided today, we 
find that it is a separable service that is not inextricably 
intertwined with BIAS and therefore does not convert BIAS into an 
information service. Indeed, as Free Press notes, ``many ISPs have 
moved away from making these same tired and demonstrably false 
arguments that DNS service and caching transform a telecommunications 
service into an information service.'' As we noted in the 2015 Open 
Internet Order, now that we conclude that DNS falls within the 
telecommunications systems management exception, ``prior factual

[[Page 45432]]

findings that DNS was inextricably intertwined with the transmission 
feature of cable modem service do not provide support for the 
conclusion that cable modem service is an integrated information 
service.'' Claims that the internet ``would not work'' without DNS, 
that DNS ``is a must for broadband to function properly,'' or that 
there ``is no internet service without DNS,'' are simply not borne out 
by the architecture of BIAS. The record reveals that DNS is not 
necessary to IP packet transfer, which is the core function of the 
service. As Professor Jon Peha explains, DNS is an ``application that 
run[s] on top of IP packet transfer'' and that, ``[f]rom the beginning, 
the DNS . . . was designed to be separate from the systems that provide 
IP Packet Transfer Service.''
    128. Even if DNS were necessary to the functionality of BIAS, the 
DNS offerings of BIAS providers are not themselves essential to BIAS, 
and therefore cannot be inextricably intertwined with their BIAS. As 
Professor Scott Jordan explains, because a BIAS provider's DNS server 
rarely serves as the authoritative resource for an IP address, their 
DNS server plays only a limited role in DNS--and that role is 
replaceable. Commenters explain that third-party-provided DNS is now 
widely available and used by consumers. Consumers often use third-party 
DNS services because their web browsers, apps, and IoT devices are 
configured to use those third-party DNS services. Other consumers may 
choose to use such third-party DNS services, which they can do with a 
simple configuration change. Notably, Verizon provides instructions on 
its website for how to change the default DNS settings or perform 
manual DNS lookups. The record presents evidence that third-party DNS 
services may now make up a significant portion of all DNS services 
today. Indeed, commenters who otherwise argue that DNS is essential to 
the functionality of BIAS carefully avoid saying that DNS supplied by 
BIAS providers is essential to BIAS's functionality. CTIA complains 
that ``[t]he IBM study makes no effort to distinguish IoT 
manufacturers' choices from consumers' choices'' and ``therefore does 
not meaningfully address what consumers perceive as the finished 
service that BIAS providers offer them.'' But the question about 
consumer perception of the ``offer'' is separate from the question of 
whether BIAS providers' DNS is essential to BIAS, and we have already 
shown that consumers perceive the BIAS offering as a telecommunications 
service and not an information service. And contrary to CTIA and 
USTelecom's assertion, if BIAS providers were to stop offering DNS, 
their DNS functionality would be quickly replaced by alternatives 
without consumers needing to take any action.
    129. We are unmoved by CTIA and USTelecom's arguments that the 
availability of third-party DNS and its use by consumers does not mean 
that BIAS providers' DNS is not functionally integrated with their 
BIAS. They first argue that consumers' use of third-party DNS is not 
determinative because ``the statutory touchstone when classifying 
services is the capability `offer[ed].' '' But consumers' use of third-
party services speaks to whether the capabilities offered by BIAS 
providers are functionally integrated, and the separate question of 
what is being offered by BIAS providers is about what consumers 
understand is the integrated finished product, not what discrete 
capabilities a BIAS provider claims itself to be offering.
    130. USTelecom claims we assert that evidence of consumer 
perception shows that consumers perceive DNS as separable from BIAS, 
which it says contradicts USTelecom's survey about consumer perception 
of DNS, but we do no such thing. Rather, we explicitly state here and 
above that consumer perception is evaluated on how consumers perceive 
the entire offering, not how consumers perceive the individual 
components, and we show in the Order that consumers perceive the 
offering of BIAS as a telecommunications service and not an information 
service. Conversely, the question of whether individual components are 
separable is a question of functionality, and we show here that DNS is 
functionally separable. As such, USTelecom's assertions about consumer 
perception of DNS based on its survey are irrelevant. But even if 
consumer perception of DNS were relevant, USTelecom's survey does not 
show that consumers perceive BIAS providers' DNS as integrated with 
BIAS, as USTelecom claims. The survey says that only 17% of respondents 
could even identify the functionality of DNS, and only 4.8% of those 
respondents said they use their BIAS providers' DNS, while 83.5% of 
respondents did not know which DNS they use. The survey then claims 
those results ``suggest that 92% of the respondents--those who 
affirmatively said they are using their ISP provider's DNS as well as 
those who do not know what DNS does and those who know what it does but 
are not sure which DNS they use--are using their ISP provider's DNS.'' 
This conclusion is based entirely on an assumption that all BIAS 
providers have a proprietary DNS system and preset that as the default 
DNS system for their BIAS, which USTelecom has not demonstrated, rather 
than use a third-party DNS system. In any event, consumers' use of 
their BIAS provider's DNS is not the same thing as consumers' 
perception as to whether their BIAS provider's DNS is functionally 
integrated with their BIAS. Moreover, because the survey does not say 
anything about whether consumers only use a BIAS provider's DNS, and 
given that browsers, apps, and devices can be preset to use third-party 
DNS systems, the survey results could be potentially interpreted to 
support the proposition that consumers use third-party DNS in addition 
to or instead of their BIAS provider's DNS. So to the extent that 
consumers' default use of DNS speaks to their perception of DNS, a 
question that we find is not dispositive to the underlying 
classification, the better conclusion is that consumers perceive DNS as 
relevant to their use of BIAS generally, not as integrated with a BIAS 
provider's BIAS offering specifically.
    131. CTIA and USTelecom also argue ``that almost all BIAS users 
rely on the DNS provided by their BIAS provider.'' A BIAS provider's 
choice to offer a separable feature that is bundled with BIAS, and a 
consumer's use of that feature, do not on their own make that feature 
essential to, or functionally integrated with, BIAS. USTelecom tries to 
sustain the argument, asserting that just as ``[a]ftermarket vendors 
commonly offer consumers the ability to change out integrated features 
in the products they buy,'' the ``ability of end users to select 
different DNS servers [does not] mean that ISPs do not integrate DNS 
into the broadband service they offer.'' USTelecom compares DNS to 
``the radio and speakers or even the engines in cars; the hard drives, 
RAM, and graphics cards in desktop computers; the hand brakes, seat, 
and pedals on bicycles; and so on.'' Even if, arguendo, DNS were 
functionally integrated with BIAS, that does not mean that DNS converts 
BIAS into an information service--either functionally or from a 
consumer perspective--any more than an engine converts a car into 
merely a device that changes gasoline into energy, a hard drive 
converts a computer into a data storage device, or hand brakes convert 
a bicycle into a mere stopping mechanism. As the Supreme Court held in 
Brand X, the entire question of whether DNS as provided with BIAS is 
functionally integrated or functionally separate turns on the ``factual

[[Page 45433]]

particulars of how internet technology works and how it is provided.'' 
And as we have already shown, DNS is a separable, application-layer 
service that does not technologically alter the ability of consumers to 
use BIAS as a transmission conduit to reach all or substantially all 
internet endpoints.
    132. We also reject the related argument that BIAS provider DNS is 
intertwined with BIAS because a customer using third-party DNS loses 
the alleged unique benefits that arise from BIAS provider DNS, such as 
efficient routing of traffic to cached information. As an initial 
matter, there is conflicting evidence in the record on whether using 
BIAS provider DNS has a material benefit to end users over third-party 
DNS. An updated version of an article cited by CTIA states that 
``[p]ublic DNS servers are often faster than those provided by ISPs due 
to closer geographic locations, enabling quicker DNS resolutions'' 
while noting that ``an untrustworthy DNS server could slow performance 
or pose security threats.'' It is also not evident that the EDNS Client 
Subnet (ECS) extension, when enabled by BIAS providers, ensures better 
performance over third-party DNS offerings that have also enabled the 
extension. In any event, that ECS is an extension that can be enabled 
(and disabled) shows that it is even more separable than DNS itself. In 
any event, that ECS is an extension that can be enabled (and disabled) 
shows that it is even more separable than DNS itself. Even if DNS does 
have a material benefit to end users over third-party DNS, we find that 
the mere existence of a potential consumer benefit resulting from BIAS 
provider DNS does not compel the conclusion that DNS is inextricably 
intertwined with BIAS. In any event, record evidence suggests it is 
more likely that BIAS providers, rather than their customers, are the 
true beneficiaries of their customers' use of in-house DNS given its 
potential to reduce BIAS providers' own transit costs.
    133. Caching Is Not Inextricably Intertwined With BIAS. In 
reviewing the factual particulars of how caching is functionally 
provided today, we find that it is a separable offering that is not 
inextricably intertwined with BIAS and therefore does not convert BIAS 
into an information service. In particular, we find that caching 
offered by a BIAS provider is separable from BIAS because caching is 
not necessary for BIAS to work--end users can and do access data that 
is not cached at all. Indeed, the inherent nature of caching--to store 
content that has been requested by the end users and is likely to be 
requested again soon--means that users will request and be able to 
receive information that has not yet been cached.
    134. The record also demonstrates that BIAS provider caching is 
separable because of the drastic reduction in its use and relevance and 
the rise of third-party CDN caching since Brand X. As Mozilla explains 
in its comments, ``caching and CDNs have been taken out of the hands of 
ISPs and are largely operated by large content providers or independent 
companies.'' Such third-party caching is now dominant because, 
according to record evidence, caching offered by a BIAS provider does 
not work with encrypted traffic--the overwhelming majority of traffic 
today. CTIA and USTelecom attempt to minimize the effect of encryption 
on BIAS provider caching, explaining that even when a website uses 
HTTPS, a BIAS provider can still see the top level of the website and 
asserting that they ``use that information to cache entire websites, so 
they can resolve requests for pages associated with that website to the 
cached content . . . .'' But this assertion is disputed in the record. 
Moreover, CDNs are uniquely able to meet consumer expectations for 
streaming video from third-party services. We therefore disagree with 
NCTA that BIAS provider caching is ``as integrated into broadband 
offerings today as they were when Brand X was decided.'' The RIF Order 
incoherently reached a similar conclusion that BIAS provider caching 
and DNS are ``inextricably intertwined'' with transmission even though 
it acknowledged that ``some consumers'' use third-party caching and 
excluded CDN caching from the definition of BIAS. Brand X was decided 
at a time when encryption was limited and there was much lower demand 
for streaming video (and therefore few, if any, CDNs). Opponents do not 
directly dispute that BIAS provider caching is incompatible with 
encryption, but try to downplay this by arguing that their DNS can 
direct user requests to the appropriate caching server. But DNS is a 
separate functionality from caching and the server to which they are 
referring is not the BIAS providers' caching server but a third-party 
CDN. In any event, even if BIAS provider caching were unaffected by the 
increasing prevalence of encryption, no commenter disputes that CDN 
caching is now dominant. Some commenters conflate transparent caching 
offered by BIAS providers with CDN caching offered by third parties to 
assert that caching is inextricably intertwined with BIAS, but we are 
not fooled by this chicanery. These commenters provide no justification 
for concluding that CDN caching, primarily sold to, and for the benefit 
of, third-party content providers, and which is explicitly excluded 
from the definition of BIAS, is also a functionally integrated 
component of a BIAS provider's BIAS offering--and we do not find any 
such justification either.
    135. Other Information-Processing Capabilities Are Not Inextricably 
Intertwined With BIAS. We are not convinced by commenters who argue 
that BIAS is an information service because the routing and 
transmission of IP packets involves information-processing 
capabilities. CTIA, for example, argues that, because IP packet routing 
``involves examination and processing of the packet at every router the 
packet traverses,'' information processing is inextricably intertwined 
with the transmission capability of BIAS itself. As an initial matter, 
as discussed above, the user's data--forming part of a payload within 
the IP packet--remains unchanged from the moment it reaches the BIAS 
provider's network to the moment it arrives at the desired endpoint. 
Thus, BIAS does not in fact offer subscribers the capability for 
processing their data--such capabilities occur at the internet endpoint 
selected by the subscriber. Other commenters raise old arguments that 
the existence of IPv4-to-IPv6 protocol transition mechanisms within 
BIAS is evidence of information processing that would convert BIAS into 
an information service. In 2016, the Internet Corporation for Assigned 
Names and Numbers (ICANN), a ``not-for-profit entity responsible for 
the technical coordination of the internet's domain name system,'' 
announced that its Internet Assigned Numbers Authority (IANA) allocated 
``the last remaining IPv4 . . . internet addresses from a central 
pool'' and that ``future expansion of the internet is now dependent on 
the successful deployment of the next generation of internet protocol, 
called IPv6.'' We find that these mechanisms are designed to ensure the 
effective and efficient transmission of BIAS traffic and thus fit 
comfortably in the telecommunications systems management exception. 
Given the difference in packet header formats between IPv4 packets and 
IPv6 packets, transition mechanisms permit the interoperability between 
IPv4-compliant and IPv6-compliant networks, servers, and routers.
    136. We also disagree with commenters who argue that BIAS is a 
functionally integrated information service because it may be offered 
in

[[Page 45434]]

conjunction with information services such as electronic mail, security 
software, smartphone applications, parental controls or spam and 
content filtering software, distributed denial-of-service (DDoS) 
mitigation, botnet notification, and firewalls. Commenters have not 
demonstrated, beyond making conclusory statements, that these bundled 
information services are not used for telecommunications systems 
management or are inextricably intertwined with BIAS, rather than being 
included in the product offering simply as the result of a marketing 
decision not to offer them separately. As explained in the 2015 Open 
Internet Order, spam filtering and DDoS mitigation fall within the 
telecommunications systems management exception. As the Supreme Court 
affirmed in Brand X, the mere packaging of separable information 
services with a telecommunications service does not convert the 
telecommunications service into an information service. The Interisle 
Consulting Group (ICG) also notes that ``[b]undles and offers do not 
define a service. Vertical integration of a retail product to include 
additional non-telecommunications services does not change the nature 
of the underlying services.'' Many of these services, such as 
smartphone applications, electronic mail, and content filtering 
software, are indeed ``offered at the application layer'' of the IP 
stack, and thus are separable from the lower network layers that 
facilitate transmission and routing of packets. No commenter has argued 
that any of these services are necessary for IP packet transfer to 
function. Thus, as explained in the 2015 Open Internet Order, BIAS ``is 
only trivially affected, if at all'' by these services' 
functionalities. Even the RIF Order stated that it did ``not find the 
offering of these information processing capabilities determinative of 
the classification of broadband Internet access service.'' For these 
reasons, we find that commenters have not provided new evidence of 
functionalities that would cause BIAS to be properly classified as a 
functionally integrated information service.

C. Classifying BIAS as a Telecommunications Service Accords With 
Commission and Court Precedent

    137. The Commission has engaged in classification decisions of 
various services that operate at the nexus of telecommunications and 
computer-based data processing for almost half a century. As has been 
the case in previous proceedings when the Commission has classified 
broadband services, the record reveals a debate regarding the relevance 
and precedential value of these Commission decisions and related court 
rulings. As a general matter, we assign limited value to many of these 
past Commission decisions and find that our classification of BIAS as a 
telecommunications service is fully and independently supported by an 
evaluation of the statutory text of the 1996 Act. Nevertheless, when 
viewed as a whole and in the proper context, we find that, on balance, 
Commission and court precedent also support our classification of BIAS 
as a telecommunications service and that arguments from opponents of 
reclassification that attempt to use such precedent to undercut our 
statutory interpretation are unavailing.
    138. Our consideration of past precedent takes two forms. In the 
case of pre-1996 Act precedent, we consider whether and how such 
precedent might have informed Congress's understanding of the 
definitional language it used in the 1996 Act, and how that, in turn, 
might support particular interpretations that otherwise flow from the 
statutory language and statutory context. Given the role of the 
Commission's Computer Inquiries precedent in the Commission's 
regulatory scheme, we are persuaded to give that precedent appropriate 
(if modest) weight and conclude that it reinforces our classification 
of BIAS as a telecommunications service under the best reading of the 
Act. We are more circumspect with respect to precedent related to the 
1984 Modification of Final Judgment (MFJ)--the consent decree which 
mandated the breakup of the Bell System--as the 1996 Act expressly 
abrogated the MFJ's requirements. Although we do not affirmatively rely 
on any of that precedent, we also consider the RIF Order to have 
mischaracterized that precedent to reach an information service 
classification of BIAS.
    139. In the case of post-1996 Act precedent concerning 
classification of services that relate to internet connectivity, we 
evaluate whether each decision supports, is distinguishable from, or is 
in tension with our decision, and explain any change in course. As 
discussed below, we find certain precedent addressing DSL service, 
while not precisely analogous with the circumstances here, helps 
reinforce our classification decision. More directly relevant and 
supportive are important court decisions addressing the classification 
of cable modem service. Other broadband service classification 
decisions prior to the 2015 Open Internet Order we find distinguishable 
on the basis of their factual predicates and/or the sufficiency or 
persuasiveness of the Commission's assessment of those facts. We 
further conclude that the classification of BIAS as a 
telecommunications service in the 2015 Open Internet Order, ultimately 
affirmed by the D.C. Circuit in USTA, reinforces our conclusion that 
BIAS is a telecommunications service under the best reading of the Act. 
Likewise, the D.C. Circuit's numerous, substantial concerns about the 
RIF Order's decision being ``unhinged from the realities of modern 
broadband service,'' also militate in favor of our classification of 
BIAS as a telecommunications service.
1. Relevant Pre-1996 Act Precedent
    140. Pre-1996 Act precedent helps to inform our understanding of 
the definitions used in the 1996 Act and reinforces our decision to 
classify BIAS as a telecommunications service. We agree as a general 
matter with the significant number of commenters that submit that the 
pre-1996 Act Computer Inquiries and MFJ service definitions informed 
Congress's adoption of the definitional terms ``telecommunications 
service,'' along with ``telecommunications,'' and ``information 
service,'' inclusive of the telecommunications systems management 
exception. However, we find that the RIF Order's heavy reliance on 
isolated MFJ precedent to understand the meaning of those terms in 
search of its predetermined information service classification was 
problematic. Contrary to the RIF Order's analysis, we find that 
Congress, in giving those terms meaning, would not have relied upon 
precedent that arose from a single isolated pre-1996 Act case, or 
passages of such cases, without also considering the marketplace or 
regulatory context present at the time of enactment of the 1996 Act. 
Rather, as the Brand X Court surmised, it is likely that Congress would 
have looked to ``settled . . . administrative . . . interpretation[s]'' 
of the analogous pre-1996 Act terms. Because much of the precedent that 
the RIF Order relied upon does not fall into the category of settled 
administrative interpretation, particularly the MFJ precedent, we 
conclude that it is not relevant to the classification of BIAS.
    141. The FCC's Computer Inquiries. Through a series of proceedings 
collectively known as the Computer Inquiries, the Commission sought to 
foster the development of the emerging data processing marketplace by 
ensuring enhanced service providers' access to communications 
facilities and services

[[Page 45435]]

necessary to the growth and success of that marketplace. To that end, 
the Computer II Final Decision (45 FR 31319 (May 13, 1980)) in 1980 
established ``a regulatory scheme that distinguishes a carrier's basic 
transmission services from its enhanced services.'' The Commission 
concluded that ``basic [services]'' were those that offered ``pure 
transmission capability over a communications path that is virtually 
transparent in terms of its interaction with customer supplied 
information.'' By contrast, ``enhanced services,'' which the Commission 
said had ``intertwined'' communications and data processing 
technologies, were, for example, used to ``act on the content, code, 
protocol, and other aspects of the subscriber's information,'' and 
provide the subscriber ``additional, different, or restructured 
information . . . through various processing applications performed on 
the transmitted information, or other actions . . . taken by either the 
vendor or the subscriber based on the content of the information 
transmitted through editing, formatting, etc.'' Under the Computer II 
regulatory approach, basic services offered on a common carrier basis 
were subject to Title II while enhanced services were not. The 
Commission used this approach to classify a wide range of services, 
including, for example voicemail and frame relay transmission service.
    142. Despite the Commission's hope that its basic-enhanced 
dichotomy would be ``relatively clear-cut,'' it acknowledged certain 
features of a service that ``might indeed fall within [the] literal 
reading[ ]'' of the definition of an enhanced service, but that would 
not change the classification of a basic service under its Computer 
Inquiries regulations because the features ``are clearly `basic' in 
purpose and use and [they] bring maximum benefits to the public through 
their incorporation in the network.'' The Commission coined the term 
``adjunct-to-basic'' to describe those kinds of features, which, when 
included as part of a basic service, would be regulated the same way as 
the basic service itself.
    143. Under the Computer II adjunct-to-basic analytical framework, 
the Commission permitted carriers to offer ``call forwarding, speed 
calling, directory assistance, itemized billing, traffic management 
studies, voice encryption, etc.'' as part of the basic service, 
concluding that these ``ancillary services directly related to the 
[provision of basic service] do not raise questions about the 
fundamental . . . nature of a given service.'' Carriers were also 
allowed to offer as basic services ``memory or storage within the 
network'' that is used only to ``facilitate the transmission of the 
information from the origination to its destination.'' Similarly, the 
Commission found that computer processing features, including 
``bandwidth compression techniques,'' ``packet switching,'' and ``error 
control techniques'' that ``facilitate [the] economical, reliable 
movement of information [did] not alter the nature of the basic 
service.'' The Commission justified its inclusion of these features in 
the basic service to encourage ``integrat[ion] of technological 
advances conducive to the more efficient transmission of information 
through the network.'' We note that the Computer III (51 FR 24350 
(July, 3, 1986)) regime did not alter this approach. Continuing this 
approach, in the 1985 NATA Centrex Order, the Commission concluded that 
transmission of telephone numbers, even when ``transformed'' by the 
network into a format that can be displayed to the call recipient on a 
display, were considered adjunct-to-basic because the number display is 
derived from the basic transmission service. Call forwarding was also 
considered adjunct-to-basic because ``it does not materially change the 
nature of a telephone call placed to that subscriber.'' In subsequently 
applying these principles, the Commission concluded that the adjunct-
to-basic exception applies to optional features or functions that are 
not necessary for the ``basic'' service to work but are merely helpful 
to that function.
    144. In other decisions under the adjunct-to-basic framework, the 
Commission concluded that optional enhanced features of basic services 
or the use of basic services to access third-party information did not 
change the classification. Where enhanced features or functions are 
accessed via a provider's basic service, but are not a part, or a 
``capability,'' of the provider's own network or service (i.e., are a 
third-party service), the service remained a basic service. Where a 
consumer is offered optional enhanced service components that could be 
combined with the basic service, but need not be, the underlying 
service remained a basic service, regardless of whether the consumer 
actually purchased the enhanced service components.
    145. Given that data processing services relied on communications 
facilities, the ability of facilities-based carriers to also offer 
enhanced services over their networks created a risk that they would 
have the incentive and ability to discriminate against their enhanced 
service provider rivals. To protect against that risk, in Computer II, 
the Commission specified that facilities-based carriers wishing to 
directly provide enhanced services over their own facilities were 
obligated to both offer the transmission component of their enhanced 
offerings--including internet access service--on a common carrier basis 
governed by Title II and acquire transmission capacity for their 
enhanced offerings under the same tariffed transmission service 
offering they made available to other enhanced service providers. Due 
to these obligations, any internet access provider, including an 
internet access provider affiliated with the facilities-based carrier 
and an unaffiliated, non-facilities-based enhanced service provider, 
was able to obtain common carrier transmission necessary to offer 
internet access to end users on the same tariffed terms and conditions 
under Title II. An end user could also obtain transmission on the same 
basis to connect with the internet access provider of its choice.
    146. By the time the 1996 Act was enacted, the Commission had been 
using the Computer Inquiries framework and its subject-matter expertise 
to classify data services as either ``basic'' or ``enhanced'' for 
almost 16 years. Thus, Congress was well aware of the Commission's 
well-established classification framework at the time it enacted the 
1996 Act. There is a ``presumption that Congress is aware of `settled 
judicial and administrative interpretation[s]' of terms when it enacts 
a statute.'' ``[A] decision by Congress to overturn Computer II, and 
subject [enhanced] services to regulatory constraints by creating an 
expanded `telecommunications service' category incorporating enhanced 
services, would have effected a major change in the regulatory 
treatment of those services.'' Although the Commission stated that it 
``would have implemented such a major change if Congress had required 
it,'' it did not find ``an intent by Congress to do so.'' Rather, the 
Commission found ``that Congress intended the 1996 Act to maintain the 
Computer II framework.''
    147. Given the myriad and complex array of Computer Inquiries 
decisions, we do not attempt to detail here with specificity the ways 
in which the Commission's Computer Inquiries precedent lends support to 
the classification decision we reach in the Order. We instead take a 
more measured approach, declining to give significant weight to 
isolated statements or draw analogies to particular classification 
outcomes dealing with services other than BIAS. It suffices to say that 
the 2015 Open Internet Order did describe the basis for such support 
when

[[Page 45436]]

classifying BIAS as a telecommunications service and that the D.C. 
Circuit recognized the importance of the Computer Inquiries to the 
``structure of the current regulatory scheme'' on its way to upholding 
that classification decision. Thus, where Computer Inquiries precedents 
are consistent with our determination that BIAS, as offered today, is 
best classified as a telecommunications service, they lend some support 
to that conclusion, and to the extent any such precedent is in tension 
or conflict with that understanding, we do not view them as 
undercutting that determination grounded in the best understanding of 
the statutory text. We are therefore uncompelled by the RIF Order's 
suggestion that only a ``drop'' of an information service (i.e., DNS or 
caching) combined with the transmission component, is sufficient to 
transform BIAS into an information service, regardless of consumer 
perception or the functional realities of the offering. The RIF Order's 
conclusion implicitly relies on isolated Computer Inquiries precedent 
finding that when a non-facilities-based ISP, as understood at the 
time, combines a telecommunications input purchased from a facilities-
based provider with its own enhanced service, the enhanced service 
``contaminated'' the resold transmission service such that the combined 
service sold to the end user is always an enhanced service. As an 
initial matter, that theory never applied to facilities-based 
providers, and some BIAS providers are facilities-based. Moreover, the 
1996 Act's definition of a ``telecommunications service'' makes clear 
that definition applies ``regardless of the facilities used.''
    148. The MFJ Antitrust Consent Decree. Similar policy concerns to 
those at issue in the Computer Inquiries were at play when, in 1982, 
the Department of Justice (DOJ) reached a negotiated settlement with 
AT&T and filed an MFJ with the D.C. Federal District Court to end a 
decades-long antitrust case. As with the Computer Inquiries, a policy 
objective of the MFJ regulatory regime was to guard against the risk of 
carriers harming competitive providers of data processing services. 
Among other things, the MFJ prohibited BOCs from providing 
``interexchange telecommunications services or information services.''
    149. As in the Computer Inquiries, the MFJ distinguished between 
basic and enhanced services, but instead used the terms 
``telecommunications services'' and ``information services,'' 
respectively. The MFJ defined a ``telecommunications service'' as ``the 
offering for hire of telecommunications facilities, or of 
telecommunications by means of such facilities.'' In turn, 
``telecommunications'' was defined as ``the transmission, between or 
among points specified by the user, of information of the user's 
choosing, without change in the form or content of the information as 
sent and received, by means of electromagnetic transmission medium, 
including all instrumentalities, facilities, apparatus, and services 
(including the collection, storage, forwarding, switching, and delivery 
of such information) essential to such transmission.'' The court 
defined ``information service'' for the purpose of the MFJ as ``the 
offering of a capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available 
information which may be conveyed via telecommunications.'' The MFJ 
information service definition also included an exception analogous to 
the ``adjunct-to-basic'' exception under the Computer Inquiries. 
Specifically, ``information service'' did ``not include any use of any 
such capability for the management, control, or operation of a 
telecommunications system or the management of a telecommunications 
service.'' Over time, the courts overseeing the MFJ developed a limited 
body of precedent regarding what was an ``information service,'' but 
did not squarely address the question of how internet access service 
fit within the MFJ's definitional framework.
    150. The RIF Order's invocation of MFJ precedent to support its 
classification decision reflects significant flaws. To begin, its 
reliance on that precedent was predicated in part on the 1996 Act's use 
of the information service definition established in the MFJ, a fact 
which we do not dispute when placed in the proper context, as described 
below. But the historical context shows that Congress did not 
necessarily intend for such reliance. Because the D.C. Circuit also was 
not presented with the considerations we identify here for giving 
little weight to MFJ precedent, its acceptance of certain of the RIF 
Order's conclusions based on MFJ precedent in Mozilla does not undercut 
our contrary conclusions here. Unlike with the Computer Inquiries, 
which the Commission found Congress did not intend the 1996 Act's 
definitional framework to supplant, the 1996 Act expressly abrogated 
the MFJ's requirements, and replaced them with those enacted as part of 
the 1996 Act. Indeed, the regulatory approach in the MFJ is 
diametrically opposed to that in the 1996 Act. While the 1996 Act's 
regulatory approach broadly tracks that of the Computer Inquiries, with 
``telecommunications services'' subject to common carrier regulation 
and ``information services'' not subject to common carrier regulation, 
under the MFJ, an ``information service'' classification led to maximal 
regulation--a complete ban on the provision of the service--for the 
carriers subject to that regulatory regime. Thus, the relevance of MFJ 
precedent is better viewed narrowly, rather than expansively, as done 
in the RIF Order, given the origins of that precedent in a regulatory 
framework Congress expressly chose to displace.
    151. The RIF Order's reliance on MFJ precedent is also contrary to 
our measured approach, and thereby suffers from the same faults it 
claimed plagued the 2015 Open Internet Order's reliance on the Computer 
Inquiries precedent--namely, viewing the precedent out of context and 
making imperfect analogies without adequately accounting for 
potentially distinguishing technical details and the regulatory 
context. It exhibited this practice most prominently by ignoring the 
MFJ framing of maximal regulation of information services. But it also 
mischaracterized specific precedent it relied upon.
    152. For instance, the RIF Order, and some commenters, 
mischaracterized MFJ precedent ``analyzing `gateway' functionalities by 
which BOCs would provide end users with access to third party 
information services.'' While the RIF Order acknowledged ``that gateway 
functionalities and broadband internet access service are not precisely 
coextensive in scope,'' it nonetheless purported to ``find similarities 
between functionalities such as address translation and storage and 
retrieval to key functionalities provided by ISPs as part of broadband 
internet access service,'' and claimed that ``the court found such 
gateway and similar functionalities independently sufficient to warrant 
an information service classification under the MFJ.'' CTIA quotes from 
the 1987 MFJ Initial Gateway Decision to argue that gateway services 
``rang[ed] from mere database access to such sophisticated services as 
teleshopping, electronic banking, order entry, and electronic mail.'' 
But in the quoted passage the court is describing such services 
generally, not specifically the offered BOC gateway service. This 
characterization of the MFJ court's conclusions is misleading, at best. 
Read in context, it is not evident the MFJ court concluded that the 
address translation and storage and retrieval features of the gateway 
service were

[[Page 45437]]

independently sufficient grounds for an information service 
classification. In relying on the court's treatment of ``address 
translation,'' the RIF Order cited a high-level statement from the 
court ``that the transmission of information services at issue there 
`involves a number of functions that by any fair reading of the term 
`information services' would be included in that definition.'' But the 
court never concluded that address translation was important to its 
conclusion that the gateway service is an information service. It 
merely listed address translation as one of the five functions that 
were part of the ``infrastructure necessary for the transmission of 
information service,'' and there is no basis for concluding that all 
five of these functionalities were independently sufficient to justify 
an information service classification. Indeed, when confronted with 
arguments that ``the Regional Companies are entitled to provide 
[address translation] even now under the decree as part of the 
permissible `forwarding or routing' functions of `information 
access,''' the court did not respond by asserting that it actually 
constituted an information service, but instead by pointing out that 
``the Court has concluded otherwise, particularly since section IV(F) 
prohibits interexchange routing.'' Further, as to some of the other 
listed service components, the MFJ court appears to strongly suggest 
that it might not cause the gateway service to be classified as an 
information service. In sum, the notion that the footnote relied on by 
the RIF Order should be read to suggest that each function of the 
gateways was independently sufficient to constitute an information 
service seems highly doubtful and is at most ambiguous. Nor are we 
persuaded to reach a contrary conclusion by a high-level assertion by 
the court that a carrier's ``gateway proposal appears to be a variant'' 
of ``information services.'' Although the MFJ court analyzed storage 
and retrieval as a distinct issue, the court's view of that 
functionality encompassed that are more clearly viewed as information 
services, ``such as voice messaging, voice storage and retrieval (VSR), 
and electronic mail,'' and therefore are not coextensive with BIAS. We 
also note that RIF Order did not address the D.C. Circuit's conclusion 
that the gateway service included a separate offering of 
telecommunications transmission, similar to the Commission's conclusion 
in the Advanced Services Order that DSL included a separate offering of 
transmission. For this reason, as well as the other concerns we raise 
in relying on this case and the MFJ precedent in general, we conclude 
that we need not adjudicate whether the MFJ permitted the generation of 
information by BOCs instead of their transmission or whether that 
distinction is relevant to the classification determination we make in 
the Order.
    153. We also conclude the RIF Order misinterpreted the single MFJ 
case it relied upon in concluding that the telecommunications systems 
management exception to the information service definition should 
exclude functions directed at end users or customers. While Mozilla 
accepted the RIF Order's analysis of the MFJ case as reasonable, it did 
not conclude that it was the only or best reading. In classifying 
Telecommunications Device for the Deaf (TDD) service as an information 
service, the MFJ court concluded that that ``the very crux and 
purpose'' of TDD service was the ``transformation of information'' and 
``it is patently obvious that what is being sought does not involve the 
internal management of Bell Atlantic.'' Although the MFJ court noted 
that the telecommunications systems management exception ``was directed 
at internal operations, not at services for customers or end users,'' 
the facts did not require the court to meaningfully grapple with the 
full meaning of the exception.
    154. In all events, the MFJ court's view of the telecommunications 
systems management exception is not inconsistent with the view we 
reiterate in the Order that a service can fall under the 1996 Act's 
exception if it is used by the provider to manage, control, or operate 
a telecommunications system, even if the service may also benefit end 
users. Indeed, the court also explained that it had applied that 
exception to ``allow[ ] the regional companies to provide directory 
assistance to their own customers,'' which unambiguously provides 
benefits for callers. Likewise, the Mozilla court recognized that an 
evaluation of provider and customer benefit from a given function 
involved ``a spectrum or continuum'' that ``requires a decider to 
select a point where both ends are in play.'' Thus, to the extent that 
these MFJ court precedents are relevant to our classification analysis, 
they do not clearly show that the relevant functions must not be so 
significantly focused on benefitting end users or customers (rather 
than providers) to fall within the telecommunications systems 
management exception.
2. Post-1996 Act Classification Decisions
    155. As mentioned above, when Congress enacted the 1996 Act, it 
codified statutory definitions that reflected the dichotomy of services 
established by the Computer Inquiries and MFJ frameworks. Specifically, 
the 1996 Act's definitions of ``telecommunications service'' and 
``information service''--including the telecommunications systems 
management exception to the definition of ``information service''--
largely track the definitions of those same terms in the MFJ. We note 
that while Congress adopted the terminology of the MFJ's definition of 
``information service,'' for the reasons we discussed above, we reject 
the view that Congress thereby intended that the Commission would be 
bound by MFJ precedent going forward. And the 1996 Act's regulatory 
approach to that dichotomy of services broadly tracks that of the 
Computer Inquiries' treatment of basic services, enhanced services, and 
adjunct-to-basic services, with ``telecommunications services,'' 
inclusive of associated services that fall into the telecommunications 
systems management exception, subject to common carrier regulation and 
``information services'' not subject to common carrier regulation. As 
noted, just two years after the 1996 Act's passage, the Commission 
confirmed that Congress had incorporated the Commission's prior 
classification scheme under the Computer Inquiries in adopting the 1996 
Act. And the Supreme Court affirmed that understanding in Brand X, 
stating that ``Congress passed the definitions in the Communications 
Act against the background of [the Computer Inquiries] regulatory 
history, and we may assume that the parallel terms `telecommunications 
service' and `information service' substantially incorporated their 
meaning, as the Commission has held.'' We disagree with NCTA that the 
sole fact that Congress enacted the terms ``telecommunications 
service'' and ``information service'' ``against the backdrop of [the] 
Commission's own refusal to treat enhanced service offerings . . . as 
`basic,' '' provides evidence of ``Congress's intent to classify 
broadband as an information service.'' NCTA attempts to connect the 
dots by claiming that the Commission classified ``the forerunners of 
broadband'' as enhanced services, but it only cited to a single Bureau-
level order from the 1980s that classified a service wholly dissimilar 
from modern BIAS as an enhanced service. And although

[[Page 45438]]

Commission precedent did treat ``internet access'' as it existed around 
time of the 1996 Act as an enhanced service, as we make clear below, 
the nature of BIAS is significantly different than the Commission's 
understanding of internet access during that period of time.
    156. In implementing the 1996 Act, the Commission harmonized its 
earlier classification decisions with the 1996 Act's new terms for the 
sake of providing regulatory certainty, and continued to draw on such 
pre-1996 Act precedent for support in classifying services under the 
1996 Act's categories. There was no need for the Commission to consider 
reconciling the MFJ with the 1996 Act because section 601(a)(1) of the 
1996 Act expressly replaced the MFJ's requirements with those enacted 
as part of the 1996 Act. Over the course of almost three decades since 
the passage of the 1996 Act, the Commission has considered the 
regulatory classification of a variety of services that relate to 
internet connectivity. In those decisions, the Commission has debated 
the practical significance of the Computer Inquiries and later 
classification decisions that preceded the decision under 
consideration. But as was observed by Justice Scalia in his Brand X 
dissent, the actual differences in Commission classification decisions 
have comparatively little to do with interpretation of statutory 
terms--like ``offer''--and instead turn principally on the best 
understanding of particular facts, such as ``the identity of what is 
offered.'' As we describe below, over the span of time since the 1996 
Act's enactment, the underlying service that ISPs offer consumers, and 
indeed, what even constitutes ``internet access,'' has shifted, and 
with it, the meaning of what constitutes an internet service provider. 
This shifting landscape challenged the Commission in conducting factual 
analyses in connection with these classification decisions. As such, 
the Commission reached different classification decisions based on 
different factual characterizations of how the relevant ``offer'' would 
be understood from a functional and end-user perspective. These factual 
characterizations often were informed by--and in the case of the RIF 
Order, were motivated by--policy objectives, and as such, the factual 
characterizations varied in their reasonableness. For these reasons, 
prior classification decisions, far from being a ``uniform regulatory 
history,'' do not provide consistent, let alone persuasive, evidence 
that modern-day BIAS is best classified as an information service under 
the 1996 Act. Some commenters observe that Commission actions shortly 
after the adoption of the Act can be particularly persuasive evidence 
of Congressional intent. But that does not provide a justification for 
attempting to apply early Commission decisions implementing the 1996 
Act outside their logical context, or for overriding the direction 
gleaned from the text and statutory context. We thus reject arguments 
that neglect the material differences between present circumstances for 
BIAS and decisions like the Stevens Report. In our decision in the 
Order, we lay out the facts concerning how modern-day BIAS is offered 
based on how it functions and is perceived, and follow those facts to 
the most logical outcome under the best reading of the statutory text. 
In doing so, as detailed above, we find that BIAS is best understood as 
a telecommunications service under the Act's definitional framework.
    157. Stevens Report. When the Commission first considered how best 
to classify ``internet access service'' under the 1996 Act, that 
service, being at a nascent stage of development, differed 
substantially from the BIAS we classify in the Order in how it was 
offered, and how consumers perceived the service. In 1997, for the 
purpose of implementing the universal service provisions of the 1996 
Act, Congress directed the Commission to review, inter alia, the 
definitions of the term ``information service,'' 
``telecommunications,'' and ``telecommunications service,'' including 
how those definitions apply ``to mixed or hybrid services and the 
impact of such application on universal service definitions and support 
. . . including with respect to internet access.'' In response, in 
1998, the Commission adopted a Report to Congress commonly referred to 
as the Stevens Report. We disagree with Consumer Action for a Strong 
Economy's argument that the 1996 Act, in ``creat[ing] a new framework 
for Title I `Information Services' as a modern alternative to 
sclerotic, New Deal-era Title II rules[,]'' reflected a ``bipartisan 
consensus for lightly regulating high-speed broadband.'' But even 
assuming such a consensus had existed with respect not only to the 
fundamentally different internet access service of the time, but also 
to broadband at such a nascent stage of its development, the Stevens 
Report makes clear that Congress preferred that the Commission decide 
its classification. And indeed, as we discuss below, the very year the 
Commission did so with respect to ``internet access service'' in the 
Stevens Report, the Commission also classified broadband provided via 
DSL as a telecommunications service subject to Title II. We also 
disagree with LARIAT's contention that ``Title II itself--with 
provisions explicitly mentioning differing charges dependent upon the 
source, destination, time, and purpose of communications--was not 
designed to regulate the internet, especially one that was `neutral.' 
'' Beyond the fact that LARIAT provides only a vague description of the 
provisions it claims are not well-suited to regulating BIAS--and does 
not appear to consider how tailored forbearance could ameliorate such 
concerns--we find that the Stevens Report makes clear that Congress did 
not intend to foreclose application of Title II to new services.
    158. At the time of the Stevens Report, internet access service 
providers typically did not own facilities or provide last-mile 
transmission themselves, instead providing their services over an 
unaffiliated telecommunications carrier's public switched telephone 
network (PSTN). ISPs primarily offered their customers a suite of 
application-layer services such as World Wide Web, newsgroups, and 
electronic mail using their own computer systems. Some ISPs did not yet 
even provide their subscribers direct access to the wider internet, 
instead solely offering portals to ``walled gardens'' of proprietary 
content. In order to reach these application-layer services, an end 
user typically first had to purchase a telecommunications service from 
an unaffiliated carrier. The Stevens Report drew on the ``intertwined'' 
language of Computer II, and coined the term ``inextricably 
intertwined'' to assert its belief that, because the ``core of the 
internet and its associated services'' offered by providers were 
information services, ``internet access service'' itself was an 
information service, being dominated by such components.
    159. The Stevens Report reserved judgment on whether entities that 
provided internet access over their own network facilities were 
offering a separate telecommunications service, and observed that ``the 
question may not always be straightforward whether, on the one hand, an 
entity is providing a single information service with communications 
and computing components, or, on the other hand, is providing two 
distinct services, one of which is a telecommunications service.'' 
Notably, at the time of the Stevens Report, BIAS was at ``an early 
stage of deployment to residential customers''

[[Page 45439]]

and constituted a tiny fraction of all internet connections. As we 
establish above, modern-day BIAS both functions and is perceived vastly 
differently from the ``internet access service'' considered in the 
Stevens Report, so we thus disagree with commenters who argue that the 
Stevens Report's assessment of the service offered at the time has 
precedential value to our decision making in the Order.
    160. Advanced Services Order and Order on Remand. In the same year 
that the Commission adopted the Stevens Report, the Commission first 
classified an early form of BIAS--namely, digital subscriber line (DSL) 
service provided over the wireline telephone network--as a 
telecommunications service. The Advanced Services Order was subject to 
a voluntary remand requested by the Commission. The Commission 
explained in the 2015 Open Internet Order why the further history of 
the Advanced Services Remand Order (65 FR 7744 (Feb. 16, 2000)) is not 
relevant here. In the 1998 Advanced Services Order, the Commission 
defined DSL-based advanced service as encompassing: (1) the 
transmission of a customer's data traffic from the customer's modem to 
the telephone company's central office; (2) the transmission between 
the central office and an interconnection point across the telephone 
company's packet switched network; and (3) interconnection arrangements 
with other providers as necessary to fulfill the service. The 
Commission distinguished this service--as we do in the Order with our 
definition of BIAS--from what it considered to be ``internet access'': 
the same bundle of application-level offerings (e.g., World Wide Web, 
email, newsgroups, and portals) described in the Stevens Report. The 
Commission therefore concluded that ``[a]n end-user may utilize a 
telecommunications service together with an information service, as in 
the case of internet access. In such a case, however, we treat the two 
services separately: the first service is a telecommunications service 
(e.g., the [ ]DSL-enabled transmission path), and the second service is 
an information service, in this case internet access.'' In the 1999 
Advanced Services Remand Order, the Commission affirmed its conclusion 
that ``[ ]DSL-based advanced services constitute telecommunications 
services as defined by section 3(46) of the Act.'' The definition of 
telecommunications service is now in section 3(53) of the Act. DSL-
based broadband providers were thus subject, under these Orders, to 
Title II in relevant part. In light of the factual circumstances 
underlying the Commission's classification of DSL, we find the Advanced 
Services Order informative as to the best classification of BIAS today. 
Although the classification decision in the Advanced Services Order 
arose in the context of the Computer II requirement that facilities-
based carriers offer the transmission underlying their enhanced service 
offering on a common carrier basis, and therefore the DSL transmission 
service was not a ``retail'' service within the meaning of the resale 
obligation in section 251(c)(4) of the Act, that does not alter the 
marketplace reality that this common carrier transmission service was 
nevertheless available for purchase by retail end users as well as 
wholesale customers, despite the RIF Order's suggestion to the 
contrary. Retail end users could rely on that common carrier 
transmission service to access the application-layer services offered 
by the ISPs of the time, consistent with the explanation of 
telecommunications services and information services that the 
Commission laid out in the Stevens Report. The RIF Order's further 
complaint that DSL common carrier transmission service ``[did not] 
itself provide internet access[ ]'' does not demonstrate that the 
purchase from two suppliers rather than a single supplier is inherently 
material to the classification analysis.
    161. We disagree with the U.S. Chamber of Commerce which argues 
that the Advanced Services Order's classification of ``internet 
access'' as an information service supports ``the textual reading . . . 
that BIAS is best classified as a Title I `information service.''' As 
we explain here, the ``internet access'' described in the Advanced 
Services Order was fundamentally different from the BIAS we classify in 
the Order, being a non-facilities-based suite of application-layer 
information services to which users connected via their DSL-based 
broadband provider. Today's BIAS, conversely, more closely resembles 
the DSL-based broadband classified as providing telecommunications 
service. We find that BIAS (as defined in the Order) provides a 
transparent conduit to edge providers' information services. We also 
disagree with NCTA's attempt to discount the relevance of the Advanced 
Services Order's classification of DSL-based broadband service as a 
telecommunications service by claiming that the Order only considered 
the classification of ``wholesale DSL transmission[ ] which incumbent 
telephone companies historically offered to ISPs such as AOL or 
Earthlink as a telecommunications service unbundled from internet 
access, [rather than] retail broadband service.'' This reading defies 
the very language in the Advanced Services Order which clearly 
considered the service to be offered both to end users and to ISPs.
    162. Classification of Cable Modem Service. The regulatory 
classification of cable modem service was unaddressed when the Ninth 
Circuit had occasion to consider it in City of Portland. There, the 
court found that cable modem service was a telecommunications service 
to the extent that the cable operator ``provides its subscribers 
internet transmission over its cable broadband facility.'' The court 
found that cable modem service, ``like [the internet access service of] 
other ISPs, . . . consists of two elements: a `pipeline' (cable 
broadband instead of telephone lines), and the internet service 
transmitted through that pipeline,'' but ``unlike [the internet access 
service of] other ISPs, [the cable modem service provider] controls all 
of the transmission facilities between its subscribers and the 
internet.'' The Ninth Circuit also noted that the Communications Act 
``includes cable broadband transmission as one of the 
`telecommunications services' a cable operator may provide over its 
cable system.'' Following City of Portland, two other courts had the 
opportunity to consider the application of cable modem service, neither 
of which we find undercut the weight the Ninth Circuit's conclusion 
lends to our independent conclusion that today's offering of BIAS is 
best classified as a telecommunications service.
    163. Three months after the City of Portland decision, the 
Commission issued the Cable Modem Notice of Inquiry (65 FR 60441 (Oct. 
11, 2000)), which sought comment on whether cable modem service should 
be classified as a telecommunications service under Title II or an 
information service subject to Title I. That proceeding culminated with 
the Cable Modem Declaratory Ruling (67 FR 18848 (Apr. 17, 2002)). Based 
on a factual record that had been compiled at that time, the Commission 
described cable modem service as ``typically includ[ing] many and 
sometimes all of the functions made available through dial-up internet 
access service, including content, email accounts, access to news 
groups, the ability to create a personal web page, and the ability to 
retrieve information from the internet.'' The Commission found that 
cable modem service was ``an offering . . . which combines the 
transmission of data with computer

[[Page 45440]]

processing, information provision, and computer interactivity, enabling 
end users to run a variety of applications.'' The Commission further 
concluded that, ``as it [was] currently offered,'' cable modem service 
as a whole met the statutory definition of ``information service'' 
because its components were best viewed as a ``single, integrated 
service that enables the subscriber to utilize internet access 
service,'' with a telecommunications component that was ``not . . . 
separable from the data-processing capabilities of the service.'' We 
disagree with the U.S. Chamber of Commerce which argues that the Cable 
Modem Declaratory Ruling's classification of cable modem service as an 
information service supports ``the textual reading . . . that BIAS is 
best classified as a Title I `information service.' '' As ACA Connects 
explains, the Commission arrived at its conclusion after reviewing the 
factual record of how providers offered, and consumers perceived, the 
service at the time. However, we disagree with both commenters that, 
somehow, this 22-year-old factual record has bearing on the 
classification of modern-day BIAS. As we amply show above, the record 
we received confirms that providers' offering of broadband service has 
indeed changed dramatically, and so have consumers' perception of the 
service. While the Cable Modem Declaratory Ruling did not mention the 
``inextricably intertwined'' language from the Stevens Report or the 
earlier ``intertwined'' language from Computer II, it followed their 
classification approach in concluding that cable modem service, as 
viewed by the end user, was dominated by the information service 
aspects. The Brand X Court cited to the Stevens Report's use of 
``inextricably intertwined'' to analogize to the Cable Modem 
Declaratory Ruling classification analysis.
    164. The Cable Modem Declaratory Ruling faced a legal challenge, 
but was ultimately upheld by the U.S. Supreme Court in Brand X. Brand X 
recognized that the Cable Modem Declaratory Ruling's Title I 
classification was a ``reversal of agency policy'' and ``change [in] 
course'' from the Commission's original classification of broadband in 
the Advanced Services Order, but held that it was permissible under the 
broad deference required by Chevron. Specifically, the Court held that 
the word ``offering'' in the Act's definitions of ``telecommunications 
service'' and ``information service'' is ambiguous, and that the 
Commission's finding that cable modem service is a functionally 
integrated information service was a permissible, though perhaps not 
the best, interpretation of the Act. NCTA misleadingly states that the 
Court's conclusion in Brand X ``confirmed that Congress never clearly 
intended for broadband to be treated as a telecommunications service.'' 
By holding that the term ``offering'' in the 1996 Act is ambiguous, the 
Court also confirmed that Congress never clearly intended for broadband 
to be treated as an information service, and thus deferred to the 
Commission's decision under Chevron. The Court explained that the Act's 
definitions turn on what the cable modem service provider is understood 
to be ``offering'' to consumers, which in turn depends on what 
consumers reasonably perceive the offering to be. Based on the 
administrative record before the Commission in 2002, the Court found 
``reasonable'' ``the Commission's understanding of the nature of cable 
modem service''--namely, that ``[w]hen an end user accesses a third 
party's website,'' that user ``is equally using the information service 
provided by the cable company that offers him internet access as when 
he accesses the company's own website, its email service, or his 
personal web page,'' citing as examples the roles of DNS and caching. 
In the wake of Brand X, the Commission proceeded to adopt information 
service classifications of internet access service offered via wireline 
networks, power line networks, and wireless networks, though the 
Commission continued to recognize that ISPs could offer broadband 
transmission as a telecommunications service subject to Title II, and 
many did.
    165. The Cable Modem Declaratory Ruling, and the successive 
decisions following it, are not determinative of the classification of 
modern-day BIAS. The Cable Modem Declaratory Ruling was based on a 
record developed in the early 2000s--when ISPs were still viewed as 
playing a crucial role in the availability of websites, email, 
newsgroup access, and the like. And the follow-on classification 
decisions substantially relied on the record compiled in the Cable 
Modem Declaratory Ruling proceeding. The factual circumstances, as 
characterized by the Commission then, differ substantially from the 
functional and marketplace realities of BIAS today, to say nothing of 
the fact that none of these decisions considered the applicability of 
the telecommunications systems management exception to the information 
service definition. The Cable Modem Declaratory Ruling and the Wireline 
Broadband Classification Order (70 FR 60222 (Oct. 17, 2005)) mentioned 
the exception in quoting the statutory definition of ``information 
service,'' but did not analyze its potential applicability, such as to 
DNS.
    166. While the Cable Modem Declaratory Ruling itself has limited 
relevance to our classification of modern-day BIAS, the Supreme Court's 
opinions on it lends some support to the telecommunications 
classification we reach in the Order. In upholding the Cable Modem 
Declaratory Ruling on reasonableness grounds, every Justice joined 
opinions that, at best, showed that the Cable Modem Declaratory 
Ruling's understanding of the factual circumstances was becoming 
increasingly outdated even at the time. Justice Thomas, writing for the 
majority, noted that ``our conclusion that it is reasonable to read the 
Communications Act to classify cable modem service solely as an 
`information service' leaves untouched Portland's holding that the 
Commission's interpretation is not the best reading of the statute.'' 
Justice Breyer's concurrence cautioned that the Commission's 
information service classification was ``perhaps just barely'' 
permissible. And in dissent, Justice Scalia, joined by Justices Souter 
and Ginsburg, found that the Commission had adopted ``an implausible 
reading of the statute'' and that ``the telecommunications component of 
cable-modem service retains such ample independent identity'' that it 
could only reasonably be classified as a separate telecommunications 
service. As we demonstrate above, today's BIAS is now entirely divorced 
from providers' information service offerings on which the Cable Modem 
Declaratory Ruling rested its classification decision. If cable modem 
service may have been best understood as a telecommunications service 
then, modern BIAS most certainly is best understood as a 
telecommunications service now.
    167. 2015 Open Internet Order. In 2015, the Commission first 
considered the classification of ``broadband internet access service,'' 
as defined by the 2010 Open Internet Order (76 FR 59192 (Sept. 23, 
2011)), narrowly focused on the transmission component of the service 
and any capabilities that are incidental to and enable the operation of 
that service, and irrespective of the technology over which that 
service is provided. In doing so, as we do here, the Commission 
reviewed its prior classification decisions concerning dial-up internet 
access service, DSL-based advanced service, cable modem service, 
wireline broadband service, and wireless broadband service, and weighed 
the relevance of such decisions

[[Page 45441]]

on a classification of BIAS based on the factual circumstances under 
which it was then offered. The Commission concluded that fixed and 
mobile ``broadband internet access service'' is a telecommunications 
service, finding that ``broadband internet access service, as offered 
by both fixed and mobile providers, is best seen, and is in fact most 
commonly seen,'' as a ``separate `offering' '' of transmission capacity 
that ``is today sufficiently independent of . . . information 
services'' such as ``email and online storage.'' The Commission first 
defined ``broadband internet access service'' in the 2010 Open Internet 
Order. The 2015 Open Internet Order also concluded that the bundling of 
certain services, such as DNS and caching, with broadband internet 
access service, does not ``turn broadband internet access service into 
a functionally integrated information service.''
    168. In 2016, the D.C. Circuit upheld the 2015 Open Internet Order 
in full in USTA. Requests for rehearing en banc were denied in 2017 in 
USTA II, 855 F.3d 381. Of note, two judges concurring in the denial of 
rehearing en banc reiterated Brand X's conclusion that a 
telecommunications service classification was both reasonable and the 
best reading of the Act. The court found that the Commission's 
conclusion that consumer perception of BIAS as a separate offering of 
telecommunications found ``extensive support in the record,'' 
``justify[ing] the Commission's decision to reclassify broadband as a 
telecommunications service.'' It also affirmed the Commission's view 
that DNS and caching fall under the telecommunications systems 
management exception because they ``facilitate use of the network 
without altering the fundamental character of the telecommunications 
service.'' Similarly, the court found ``reasonable and supported by the 
record'' the Commission's classification of mobile BIAS as a commercial 
mobile service. It also concluded that the Commission fully justified 
its change in course.
    169. RIF Order. In 2017, the Commission reclassified the 
technology-agnostic BIAS as an information service, reversing the 
conclusion of the 2015 Open Internet Order. While maintaining the same 
narrowly drawn definition of BIAS used since the 2010 Open Internet 
Order, the Commission nevertheless considered BIAS (1) to provide 
subscribers the capability ``to engage in all of the information 
processes listed in the information service definition''; (2) to 
involve ``information processing functions itself, such as DNS and 
caching''; and (3) to be inextricably intertwined with other 
information-processing capabilities offered by the BIAS provider or 
third parties. In conducting its factual analysis, the RIF Order relied 
on the Cable Modem Declaratory Ruling, along with Brand X, in addition 
to the isolated MFJ precedent we previously addressed.
    170. In addition to the RIF Order's misapplication of the statutory 
definitions, which we discuss above, its application of Commission 
precedent to arrive at its preordained information service 
classification was flawed. By the time the RIF Order ventured to 
reconsider the classification of BIAS, the factual characterizations in 
the Cable Modem Declaratory Ruling, which Brand X showed were becoming 
outdated even at the time, were positively antiquated. Nevertheless, 
the RIF Order at times erroneously leaned on that proceeding's factual 
record in its analysis of modern-day BIAS.
    171. On review in Mozilla, the D.C. Circuit was skeptical of the 
RIF Order's classification decision, and in particular its reliance on 
Brand X and the underlying Cable Modem Declaratory Ruling. As Judge 
Millett pointed out in her Mozilla concurrence, and as we likewise find 
here: ``Today, the typical broadband offering bears little resemblance 
to its Brand X version. The walled garden has been razed and its fields 
sown with salt. The add-ons described in Brand X--`a cable company's 
email service, its web page, and the ability it provides consumers to 
create a personal web page,'--have dwindled as consumers routinely 
deploy `their high-speed internet connections to take advantage of 
competing services offered by third parties.' '' Although, the court 
ultimately upheld the RIF Order, it did so not because the RIF Order 
best represented the factual realities of the offering or most closely 
accorded with precedent, but under the judicial principles concerning 
deference and binding precedent. As Congress has granted the Commission 
the authority and responsibility to classify services, we are not so 
bound. Given the RIF Order's flawed analysis of the statutory terms and 
misplaced reliance on aging conceptions of how internet access service 
is offered today, we thus decline to give the RIF Order's 
classification determination any precedential value, and instead find 
that our classification of BIAS as a telecommunications service is not 
only the best reading of the statute under the factual circumstances of 
how BIAS is offered today but also best accords with Commission and 
court precedent.

D. Scope of Reclassification

    172. Our classification decision continues to rely on the same 
definition of ``broadband internet access service'' the Commission has 
used since the 2010 Open Internet Order, which encompasses mass market, 
retail data transmission and capabilities that are incidental to and 
enable its operation. We continue to exclude non-BIAS data services and 
clarify the framework for identifying those services. To the extent 
that the exchange of internet traffic by an edge provider or an 
intermediary with the BIAS provider's network supports the capability 
to reach all or substantially all internet endpoints and enables the 
operation of the service, we find that BIAS includes such internet 
traffic exchange. However, we clarify that service to edge providers is 
not itself BIAS. We also continue to exclude premises operators and end 
users who provide access to their BIAS connections when not offered on 
a mass-market, retail basis.
1. Broadband Internet Access Service
    173. We continue to define ``broadband internet access service'' as 
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. We also 
continue to include in this term any service that we find to provide a 
functional equivalent of the service described in the definition, or 
that is used to evade the protections set forth in part 8 of the 
Commission's rules. The Commission has retained this definition since 
it first defined broadband internet access service in the 2010 Open 
Internet Order, and a broad range of commenters support us continuing 
to do so. Our use of the term ``broadband'' in the Order includes, but 
is not limited to, services meeting the threshold for ``advanced 
telecommunications capability.'' We continue to exclude dial-up 
internet access service from the definition of BIAS because of the 
different market and regulatory landscape for that service. We also 
make clear that the definition of BIAS does not include VoIP service 
and we do not classify VoIP service in the Order. We do not, however, 
find it appropriate to define BIAS as solely the ``commercial offering 
of an IP packet transfer service'' because such a description would 
expand the scope beyond the focus of this proceeding and our actions in 
the Order.

[[Page 45442]]

Indeed, such a high-level--and therefore broad--definition could sweep 
in services using IP packet transfer for reasons completely unrelated 
to internet access.
    174. As the Commission has previously determined, the term 
``broadband internet access service'' includes services provided over 
any technology platform, including, but not limited to, wire, 
terrestrial wireless (including fixed and mobile wireless services 
using licensed or unlicensed spectrum), and satellite. ``Fixed'' 
broadband internet access service refers to a broadband internet access 
service that serves end users primarily at fixed endpoints using 
stationary equipment, such as the modem that connects an end user's 
home router, computer, or other internet access device to the internet, 
and encompasses the delivery of fixed broadband service over any 
medium, including various forms of wired broadband service (e.g., 
cable, DSL, fiber), fixed wireless access (FWA) broadband service 
(including fixed services using unlicensed spectrum and cellular fixed 
wireless access), and fixed satellite broadband service. Cellular fixed 
wireless access refers to a specific subclass of FWA offered using 4G 
or 5G mobile technologies and shares the mobile network. ``Mobile'' 
broadband internet access service refers to a broadband internet access 
service that serves end users primarily using mobile stations, and 
includes, among other things, services that use smartphones or mobile-
network-enabled tablets or devices as the primary endpoints for 
connection to the internet, as well as mobile satellite broadband 
service. We continue to encompass within the definition of broadband 
internet access service all providers of any such service, regardless 
of whether the BIAS provider leases or owns the facilities used to 
provide the service.
    175. We disagree with the Information Technology and Innovation 
Foundation's (ITIF) argument that our definition of BIAS undermines the 
applicability of the Open Internet rules we adopt by rendering the 
rules ``essentially voluntary'' as long as an entity offers a service 
that does not provide indiscriminate access to all or substantially all 
internet endpoints and discloses its network management practices. This 
argument conflates not providing BIAS at all with providing BIAS while 
violating the rules. Notably, if ITIF's argument were true, it would 
also be the case that the transparency rule maintained by the RIF Order 
would also be voluntary, and yet ITIF did not raise this issue as a 
concern in that proceeding. A BIAS provider cannot simply declare that 
it is not providing BIAS; the determination is dependent on the nature 
of the service the BIAS provider offers, as reasonably understood by 
consumers. An ISP offering that is clearly identified and marketed to 
consumers as providing edited or curated internet access--rather than 
service that consumers reasonably understand and expect to provide 
indiscriminate access to all or substantially all internet applications 
and services of their choosing--would fall outside the scope of the 
Order, but an ISP may not provide consumers what appears to be ordinary 
mass-market broadband service and then engage in discriminatory 
practices that deny customers the service they reasonably expect. An 
ISP that currently provides BIAS but seeks to instead provide a service 
that falls outside the definition of BIAS, particularly as a means to 
avoid the service being subject to the Commission's rules, may find 
that this exercise could have non-trivial commercial and regulatory 
consequences. That decision also may carry other important 
consequences. For example, an ISP that is not providing BIAS might not 
qualify to participate in Federal and State programs to fund broadband 
deployment and affordability, might not benefit from the Commission's 
pole attachment rights under section 224 and rules concerning access to 
MTEs, and might not be able to petition the Commission under section 
253 to preempt State and local requirements that prohibit the provision 
of the non-BIAS service.
    176. Mass Market. We continue to find that a ``mass-market'' 
service is ``a service marketed and sold on a standardized basis to 
residential customers, small businesses, and other end-user customers, 
such as schools and libraries.'' The Commission has retained this 
interpretation of ``mass market'' since the 2010 Open Internet Order, 
and the record supports continuing to retain this definition. In order 
to maintain consistency with this interpretation, we decline Ad Hoc 
Telecom Users Committee's request to remove the word ``small'' from 
``small business'' in considering what constitutes a ``mass market'' 
service. We note that in examining whether a service is ``mass 
market,'' how a service generally is marketed and sold, rather than the 
entity purchasing the service, is the key determination. In addition to 
including broadband internet access service purchased with support from 
the E-Rate, Lifeline, and Rural Health Care programs, as well as any 
broadband internet access service offered using networks supported by 
the High Cost program, ``mass market'' services include any broadband 
internet access service purchased with support from the Affordable 
Connectivity Program (or any successor program offering discounts to 
eligible households for standardized broadband service offerings) or 
the Connected Care Pilot Program. These programs statutorily support 
BIAS regardless of its classification status. Consistent with the 2015 
Open Internet Order and RIF Order, and with broad record support, we 
continue to interpret mass market to exclude enterprise internet access 
service offerings as well as other services, such as Business Data 
Services (BDS), that do not provide access to all, or substantially 
all, internet endpoints. The services we exclude from being considered 
mass market exhibit distinct marketplace and technological 
characteristics from those of BIAS. They are typically offered and sold 
to large businesses through customized or individually negotiated 
arrangements and thus depart significantly from BIAS offerings. We make 
clear that enterprise services are excluded from the definition of BIAS 
even when they are supported by the Commission's broadband access and 
affordability programs. No commenter opposes this approach. Our 
determination that enterprise services are not included within the 
definition of BIAS should not be understood to mean that non-private-
carriage enterprise services cannot otherwise be subject to regulation 
as telecommunications services. We believe it is likely that at least 
some such services are indeed offered as telecommunications services 
and note that would be consistent with previous Commission statements 
that non-private-carriage enterprise services are telecommunications 
services.
    177. Retail. We retain the word ``retail'' in the definition of 
BIAS and hold that BIAS includes retail service provided by both 
facilities-based providers and resellers. In doing so, we maintain the 
definition of BIAS that the Commission has consistently applied since 
the definition originated in 2010. We therefore decline, at this time, 
INCOMPAS's request to delete the word ``retail'' from the definition of 
BIAS. The applicability of the Commission's reclassification and rules 
to wholesale services was not directly raised in the 2023 Open Internet 
NPRM and we find that it would be premature for the Commission to take 
further action regarding wholesale services based on the current 
record. For the same reasons, we decline Public Knowledge's request 
that the Commission ``clarify''

[[Page 45443]]

that wholesale services are subject to Title II. Nevertheless, we agree 
with commenters that broadband wholesalers should not engage in 
anticompetitive practices or sell or operate their wholesale offerings 
in a manner that prevents resellers from offering retail broadband 
service that is in compliance with our BIAS rules. If wholesale 
providers did engage in such harmful practices, the Commission would be 
able to take action to address them pursuant to its Title II authority, 
without including those wholesale providers within the scope of BIAS. 
That wholesale services do not fall within the definition of BIAS does 
not mean that they do not fall within the ambit of Title II in some 
circumstances or otherwise may be subject to the Commission's oversight 
under section 201(b), which provides the Commission authority to ensure 
that all practices ``in connection with'' BIAS are ``just and 
reasonable.'' We thus disagree with INCOMPAS's suggestion that a 
specific classification of wholesale service as a telecommunications 
service is a necessary prerequisite for protecting consumers and 
resellers from the unjust or unreasonable actions of wholesale service 
providers. Indeed, we agree with INCOMPAS that the Commission ``has the 
authority under sections 201 and 202 to adjudicate disputes between 
wholesalers and resellers of BIAS.''
    178. We conclude that our approach should provide consumers with 
necessary protections without unfairly burdening resellers with 
violations resulting from the actions of their wholesale providers. Our 
BIAS definition includes services from both facilities-based providers 
and resellers, and therefore any BIAS rules we adopt apply to both 
categories of service providers. As explained in the 2015 Open Internet 
Order, while ``a reseller's obligation under the rules is independent 
from the obligation of the facilities-based provider that supplies the 
underlying service to the reseller, . . . the extent of compliance by 
the underlying facilities-based provider will be a factor in assessing 
compliance by the reseller.'' Thus, if a reseller has employed 
reasonable measures to ensure it is able to comply with its obligations 
under our rules, non-compliance by the reseller's underlying 
facilities-based provider will not be imputed to the reseller. What 
constitutes reasonable measures will depend on the factual 
circumstances, including the details of the reseller's arrangement with 
the wholesale provider and the reseller's diligence in seeking to 
enforce the terms of that arrangement. We not only expect resellers to 
take care that the service they choose to resell to retail customers 
would not expose them to compliance issues under our rules, but we also 
expect that facilities-based providers that choose to provide wholesale 
service will not sell a service that does not allow resellers to comply 
with our rules. In any event, we intend to monitor the wholesale 
service marketplace and will take appropriate prescriptive or 
enforcement action to protect consumers and resellers should the need 
arise.
2. Non-BIAS Data Services
    179. We continue to exclude non-BIAS data services (formerly 
``specialized services'') from the scope of broadband internet access 
service. As the Commission explained in the 2015 Open Internet Order, 
non-BIAS data services are certain services offered by BIAS providers 
that share capacity with broadband internet access service over BIAS 
providers' last-mile facilities but are not broadband internet access 
service or another type of internet access service, such as enterprise 
services. Such services generally share the following characteristics: 
(1) are only used to reach one or a limited number of internet 
endpoints; (2) are not a generic platform, but rather a specific 
``application level'' service; and (3) use some form of network 
management to isolate the capacity used by these services from that 
used by broadband internet access services. These characteristics are 
non-exhaustive and do not comprise elements of a definition of non-BIAS 
data services. We clarify this in light of confusion in the record that 
the characteristics established in the 2015 Open Internet Order 
constituted elements of a definition of non-BIAS data service. Thus, 
services with these characteristics will not always be considered non-
BIAS data services. In 2015, the Commission identified examples of some 
services that, at the time, likely fit within the category of non-BIAS 
data services. The Commission identified some BIAS providers' existing 
facilities-based VoIP and IP-video offerings, connectivity bundled with 
e-readers, heart monitors, energy consumption sensors, limited-purpose 
devices such as automobile telematics, and services that provide 
schools with curriculum-approved applications and content as examples 
of non-BIAS data services.
    180. Innovation and Investment. We anticipate that maintaining an 
exclusion of non-BIAS data services from the definition of BIAS will 
foster innovation and investment in BIAS and non-BIAS data services. We 
agree with Professor van Schewick that excluding non-BIAS data services 
from the scope of BIAS ``allows applications to emerge that would not 
be able to function on the Open Internet because they need special 
treatment that the Open Internet cannot provide.'' We further expect 
that our approach will guard against artificial marketplace distortions 
by providing a level playing field for like data services under our 
rules: those that fit the ``core'' definition of BIAS, represent its 
functional equivalent, or are used in an attempt to evade our rules 
governing BIAS will be treated the same under our rules, while data 
services that fall outside the scope of BIAS--whether established or 
new--will be treated comparably. Additionally, we anticipate that, 
under our regulatory approach, BIAS providers will be motivated to 
innovate and invest in the development and deployment of new 
technologies that will help enable them to meet growing network 
capacity demands for both BIAS and non-BIAS data services utilizing the 
same network infrastructure, rather than responding to those growing 
demands through blocking, throttling, paid prioritization, or other 
conduct harmful to the broader public interest.
    181. Evasion and Enforcement. Key to promoting these benefits is 
ensuring that our exclusion of non-BIAS data services is not used as a 
means to evade the rules we place on BIAS, including the open internet 
rules we adopt in the Order. To do so, we will continue to closely 
monitor the development and use of these services and will act to 
prevent harm to the open internet, as necessary. We are especially 
concerned about activities that may undermine national security or 
public safety, hinder consumers' access to or use of BIAS, or impede 
the ability of over-the-top services to compete with other data 
services. If we determine that a particular service is providing the 
functional equivalent of BIAS or is being used to evade the protections 
set forth in our rules, we will take appropriate action. We will be 
watchful of consumer retail offerings, and will evaluate if necessary 
whether they actually require isolated capacity for a specific 
functionality or level of quality of service that cannot be met over 
the open internet, but we will presume that application-level 
enterprise offerings do not evade our rules. For example, we are likely 
to find that connectivity for video conferencing offered to consumers 
would evade the protections we establish for BIAS if the video-
conferencing provider is paying the

[[Page 45444]]

BIAS provider for prioritized delivery. Conversely, we are likely to 
find that connectivity for remote surgery is properly categorized as a 
non-BIAS data service given its ``stringent requirements for 
reliability'' and lack of latency that ``cannot be met over the Open 
Internet.'' We also will closely monitor any services that have a 
negative effect on the performance of BIAS or the capacity available 
for BIAS over time. We decline to explicitly state that non-BIAS 
service may not share capacity with BIAS, as Professor Peha requests, 
as this may inhibit innovative uses of existing capacity that do not 
otherwise harm the open internet. And we will take appropriate action 
if a non-BIAS data service is undermining investment, innovation, 
competition, or end-user benefits. To assist us in monitoring non-BIAS 
data services, we continue to require BIAS providers to disclose: what 
non-BIAS data services they offer to end users; whether and how any 
non-BIAS data services may affect the last-mile capacity available for, 
and the performance of, BIAS; and a description of whether the service 
relies on particular network practices and whether similar 
functionality is available to applications and services offered over 
BIAS.
    182. Alternative Approaches. We resist calls from some commenters 
that we eschew this approach and instead adopt an abstract, expansive 
definition of non-BIAS data services and/or a more detailed list of 
such services, as doing so would not account for the evolving, 
innovative nature of these services and the importance of ensuring BIAS 
providers cannot evade our rules. Our approach aligns with the approach 
taken towards non-BIAS data services in the 2015 Open Internet Order. 
Adopting an abstract, expansive definition of non-BIAS data services 
would encompass services functionally equivalent to BIAS and those used 
to evade our rules for BIAS, contradicting our BIAS definition and 
potentially undermining our ability to address services that cause open 
internet, national security, public safety, or other harms we identify 
in the Order. Similarly, providing an extensive list of non-BIAS data 
services could harm consumers if BIAS providers develop methods to use 
an identified service on the list to somehow circumvent our rules. 
Moreover, a more detailed definition of non-BIAS data services would 
require us to accurately predict the forms that ``functionally 
equivalent'' services or services used to ``evade'' our rules could 
take in the future. The record here does not persuade us that we could 
reliably do so, nor would we be positioned to maintain and update such 
a list in a timely manner as new services are developed. Additionally, 
rather than promote innovation, as the European Telecom Operators' 
Association suggests, developing an extensive and detailed list may 
instead constrain innovation by disincentivizing BIAS providers from 
offering or developing services that are not on the list.
    183. Network Slicing. Consistent with the approach we lay out 
above, we decline at this time to categorize network slicing or the 
services delivered through network slicing as inherently either BIAS or 
non-BIAS data services, or to opine on whether any particular use of 
network slicing or the services delivered through network slicing would 
be considered a reasonable network management practice under the open 
internet rules we adopt below.
    184. Network slicing is a technique that enables mobile network 
operators (MNOs) to create multiple virtualized subnetworks (each known 
as a ``slice'') using shared physical wireless network infrastructure 
and common computing resources. Network slicing is often described as a 
``logical'' segmentation of the network, which means that each slice 
may correspond to a unique set of network management rules tailored for 
specific technical requirements, but without any physical division or 
dedication of network resources. MNOs can use network management rules 
to configure each slice for customized use cases and quality-of-service 
(QoS) targets. Network slicing is a key innovation of standalone 5G 
networks, which are in varying stages of deployment for different 
providers, and it cannot be deployed on non-standalone 5G networks 
(i.e., 5G networks with a 4G LTE core network).
    185. Proponents of network slicing ask us to clarify that network 
slicing or certain services delivered using network slicing are ``non-
BIAS''--and thus not subject to Title II regulation--or are reasonable 
network management practices under our open internet rules. They argue 
that network slicing allows for the efficient management of finite 
mobile network resources and eliminates the need for the deployment of 
separate physical networks for different types of services. For 
instance, network slicing proponents contend that it allows MNOs to 
establish separate slices for mobile broadband and fixed wireless 
traffic, while simultaneously offering customized slices for enterprise 
private networks, video calls, and a variety of other uses. For 
example, these supporters state that network slicing might be used for: 
augmented reality (AR)/virtual reality (VR), automotive, agriculture, 
energy, health, manufacturing, IoT, public safety, smart cities, and 
other functions. They further assert that network slicing is more 
resilient to cyberattacks because breaches can be contained in one 
slice and prevented from affecting other parts of the network.
    186. Other commenters raise concerns about the implications of 
network slicing. They specifically express concern that network slicing 
will be used to circumvent our prohibition on paid prioritization, 
throttling, or unreasonable discrimination. Public Knowledge also 
contends that allowing network slicing for specialized services will 
negatively affect the quality and capacity of general internet access, 
and New America's Open Technology Institute contends that exempting 
applications, content, or services delivered over a slice of a mobile 
network from the rules ``is likely to harm mobile market competition,'' 
particularly for ``independent MVNO [mobile virtual network operators] 
competitors since they purchase wholesale bandwidth, cannot `slice' 
their networks, and could also see their capacity and quality of 
service crowded out over time as the more profitable edge providers are 
pushed to pay for special delivery'' over the large mobile networks.
    187. The record reflects that the potential use cases for network 
slicing are still under development and that MNOs are in the early 
stages of adopting the technique, with some moving more quickly than 
others. For instance, T-Mobile states it has begun offering a network 
slicing beta program that allows developers to begin building advanced 
video calling functionality using its infrastructure. Other MNOs are 
actively developing their own network slicing offerings, and equipment 
manufacturers are also preparing to update their operating systems to 
support network slicing applications. Given the nascent nature of 
network slicing, we conclude that it is not appropriate at this time to 
make a categorical determination regarding all network slicing and the 
services delivered through the use of network slicing. We agree with 
NCTA that we ``should not allow network slicing to be used to evade 
[the] Open internet rules'' that we adopt. In the meantime, MNOs should 
evaluate whether their particular uses of network slicing fall within 
the definition of BIAS, and if so, ensure their uses of network slicing 
are consistent with the conduct rules we adopt in the Order. MNOs may 
also use the advisory opinion process we

[[Page 45445]]

establish below as a tool to seek Commission guidance on their use of 
network slicing. And to the extent uses of network slicing fall outside 
of BIAS, we will closely monitor those uses to evaluate if they are 
providing the functional equivalent of BIAS, being used to evade our 
open internet rules, or otherwise undermining investment, innovation, 
competition, or end-user benefits in the internet ecosystem. We will 
also monitor if network slicing affects the last-mile capacity 
available for, and the performance of, BIAS. If necessary, we will take 
action to address harmful uses of network slicing. We believe this 
approach will allow for the continued development and implementation of 
network slicing while at the same time ensuring that the use of network 
slicing in connection with BIAS conforms to the classification and 
rules adopted in the Order.
3. Internet Traffic Exchange
    188. Consistent with the 2015 Open Internet Order, we find that 
BIAS, as defined above, includes the exchange of internet traffic by an 
edge provider or an intermediary with the BIAS provider's network 
(i.e., internet peering, traffic exchange, or interconnection), to the 
extent that the exchange supports the ``capability to transmit data to 
and receive data from all or substantially all internet endpoints . . . 
[and] enable the operation of the communications service.'' As the 
Commission explained in 2015, ``[t]he representation to retail 
customers that they will be able to reach `all or substantially all 
internet endpoints' necessarily includes the promise to make the 
interconnection arrangements necessary to allow that access'' and ``the 
promise to transmit traffic to and from those internet end points back 
to the user.'' We disagree with the Information Technology Industry 
Council that ``interconnection, peering, traffic exchange, . . . and 
similar arrangements should be excluded from the definition of BIAS.'' 
For a BIAS provider to offer to its subscribers the capability to reach 
all or substantially all internet endpoints, it must make arrangements 
with other network operators that have the capability (whether via its 
own network or via another interconnected network) to reach those 
endpoints. Indeed, this system of interconnection is the core concept 
of the ``internet''--it is a network of networks. We also conclude that 
the Commission's findings and rationale regarding internet traffic 
exchange in the 2015 Open Internet Order--that service to edge 
providers resulting from internet traffic exchange is derivative of 
BIAS and constitutes the same traffic to the consumers--remain valid. 
The Ad Hoc Broadband Carrier and Investor Coalition asks us to confirm 
that edge service ``would be treated as part of BIAS only to the extent 
they are offered as part of a `mass-market retail' internet access 
service.'' Internet traffic arrangements are derivative of all services 
that meet the definition of BIAS, which not only includes mass-market 
retail services, but also services that provide the functional 
equivalent of BIAS or that evade the protections set forth in part 8 of 
the Commission's rules. We observe that the RIF Order does not appear 
to dispute the Commission's previous conclusion that BIAS includes 
internet traffic exchange, and instead determined that internet traffic 
exchange arrangements were appropriately regulated as an information 
service by virtue of its conclusion that BIAS is an information 
service. Many commenters support our approach. Additional commenters, 
by supporting our adoption of rules governing internet traffic exchange 
arrangements, also support sub silentio the inclusion of internet 
traffic exchange within the scope of BIAS.
    189. We disagree with USTelecom's arguments that the D.C. Circuit 
in USTA erred in concluding that the Commission has the authority to 
include internet traffic exchange within the scope of BIAS. USTelecom 
first asserts that sections 251(a), 251(c)(2), and 201(a) of the Act, 
which concern interconnection, ``refute[ ] any notion that 
classification of a retail service as a Title II common-carrier service 
carries with it authority for the Commission to regulate on a common-
carrier basis the terms and conditions on which those retail providers 
interconnect.'' USTelecom specifically asserts that were this not the 
case, ``the specific limitations on the Commission's authority in 
Sections 251(c)(2) and 201(a) would be rendered obsolete.'' But 
USTelecom rests its conclusion on the mere existence of these 
provisions and not any express statutory language prohibiting further 
Commission authority over interconnection. USTelecom's understanding of 
section 201(a) is undercut by the history of the Commission's treatment 
of interconnection and traffic exchange-related matters as cognizable 
under section 201(b). Nor does USTelecom grapple with the fact that 
section 251 expressly preserves the Commission's prior authority under 
section 201 in its entirety. Thus, we do not read section 201(a) and/or 
section 251(c)(2) as limitations on other authority as relevant here--
notably including section 201(b). Our regulatory approach to the 
traffic exchange element of BIAS also is far removed from the type of 
case-by-case orders for physical interconnection between two carriers 
that is the subject matter of the interconnection requirements of 
section 201(a). We separately note that under section 251 ``the term 
`interconnection' refers solely to the physical linking of two 
networks, and not to the exchange of traffic between networks.''
    190. Assuming, arguendo, that USTelecom were correct that the 
Commission lacks authority to include internet traffic exchange within 
the scope of BIAS, it goes on to claim that ``[i]n the absence of such 
implicit authority,'' the Commission may only regulate internet traffic 
exchange arrangements ``if the Commission classified such arrangements 
as a telecommunications service,'' which it cannot do given that ``such 
arrangements by definition involve information service providers on 
both sides.'' Importantly, USTelecom conspicuously ignores the 
statutory prescription of section 201(b) of the Act that all activities 
performed ``in connection with'' a telecommunications service be just 
and reasonable. For purposes of section 201(b), it does not matter 
whether the practice, classification, or regulation itself involves a 
separate telecommunications service if it is provided ``in connection'' 
with a telecommunications service. Accordingly, and as the USTA court 
affirmed, we need not classify internet traffic exchange arrangements 
as telecommunications services for the retail service that depends upon 
such arrangements for its operation to be within the scope of our Title 
II regulatory authority. We also disagree with USTelecom that all 
internet traffic arrangements ``by definition involve information 
service providers on both sides'' as that presumes that BIAS is an 
information service, which as we conclude in the Order, it is not.
    191. Lastly, we dispute USTelecom's characterization that the 
inclusion of internet traffic exchange within the scope of BIAS is 
flawed because we are compelling BIAS providers to offer internet 
traffic exchange arrangements on a common carrier basis when they ``do 
not satisfy the NARUC test for classifying a service as common carriage 
rather than private carriage.'' In offering BIAS to its end-user 
customers, a BIAS provider has voluntarily assumed an obligation to 
arrange the transfer of that traffic on and off its network. BIAS 
providers hold themselves out to carry the traffic desired by the BIAS 
provider's end-user customers

[[Page 45446]]

regardless of source and regardless of whether an edge provider has a 
specific arrangement with the BIAS provider. While broadband providers 
may not need to enter into any specific agreement with any specific 
traffic exchange partner, by choosing to offer BIAS, they have bound 
themselves to enter into such agreements in general. In the absence of 
such agreements, they would be unable to provide BIAS because users 
would be unable to reach ``all or substantially all internet 
endpoints.'' Thus, our treatment of internet traffic exchange is based 
on the marketplace realities of how BIAS is offered today, not based on 
any compulsion that BIAS providers enter any arrangements on a common 
carriage basis. At the same time, nothing rules out those arrangements 
being common carriage arrangements if, as a factual matter, that is, in 
fact, how they are offered. Whether an offering is private or common 
carriage does not depend upon what a provider may assert is the nature 
of the offering, but rather on the factual particulars of how the 
service is offered and to whom. Therefore, simply because a BIAS 
provider's terms of service disclaims offering internet traffic 
exchange on a common carrier basis does not make it so. Additionally, 
as the Commission did in 2015, we apply a case-by-case approach to 
exercising our section 201(b) authority over internet traffic exchange 
underlying retail BIAS offerings, and we do not concede--and USTelecom 
has not demonstrated--that such regulatory oversight will in practice 
require BIAS providers to enter traffic exchange arrangements with edge 
providers or intermediaries in a way that, per se, requires them to act 
as common carriers.
4. Service Furnished to Edge Providers
    192. We agree with ICG's contention that edge service--insofar as 
the term ``edge service'' refers to ``the service that the Verizon 
court identified as being furnished to the edge''--is not itself BIAS. 
In its review of the 2010 Open Internet Order, the D.C. Circuit in 
Verizon concluded that ``in addition to the retail service provided to 
consumers, `broadband providers furnish a service to edge providers,' 
'' and in the 2015 Open Internet Order, ``the Commission agree[d] that 
a two-sided market exists and that the beneficiaries of the non-
consumer side either are or potentially could be all edge providers.'' 
The RIF Order reflected the same understanding of the marketplace. 
Thus, we agree that any service BIAS providers provide to edge 
providers is at least technically distinct from the ``retail'' and 
``mass market'' service that we define BIAS to be. At the same time, we 
reaffirm the understanding that ``the `service to edge providers' is 
subsumed within the promise made to the retail customer of the BIAS 
service.'' Whether the last-mile BIAS provider carries the traffic 
directly from an edge provider's endpoint on the BIAS provider's own 
network or from a data center or other interconnection point does not 
change the fact that the BIAS provider is carrying that traffic, on 
behalf of the edge provider, to the BIAS subscriber as part of the 
subscriber's broadband internet access service. Just as BIAS can and 
does include the exchange of internet traffic without requiring us to 
classify the underlying service arrangements into which BIAS providers 
enter to enable that exchange of traffic, so too can and does BIAS 
include the transmission of edge provider traffic--as sought by BIAS 
end users--without requiring us to classify the companion transmission 
service provided to edge providers that was identified by the Verizon 
court and accepted by subsequent Commission precedent. Specifically, 
``the so-called `edge service' is secondary, and in support of, the 
promise made to the end user'' to ``transport and deliver traffic to 
and from all or substantially all internet endpoints,'' given that it 
``necessarily includes the promise to transmit traffic to and from 
those internet end points back to the user.''
    193. We decline INCOMPAS's suggestion that we ``clearly state th[at 
BIAS providers] serve their BIAS customers, [and] not edge providers, 
in the provision of BIAS.'' As explained above, the Verizon court 
identified this ``edge service'' as distinct from the retail service we 
define as BIAS here, and the Commission ultimately endorsed the 
understanding of it as a separate service in the 2015 Open Internet 
Order and the RIF Order. Beyond claiming, without further explanation 
or evidence, that BIAS providers do not serve edge providers, INCOMPAS 
does not provide any justification for why we should change this 
understanding of the marketplace. Even assuming arguendo that one 
accepted INCOMPAS's assertion that while ``BIAS providers and edge 
providers may share the BIAS customer--the end user who pays for the 
BIAS-- . . . that does not make the edge provider a customer of the 
BIAS provider,'' it would not persuade us to alter our understanding of 
the marketplace. As the Verizon court observed, ``[i]t is true, 
generally speaking, that the `customers' of broadband providers are end 
users. But that hardly means that broadband providers could not also be 
[a service provider] with respect to edge providers.'' INCOMPAS also 
contends that ``edge service is not derivative of BIAS,'' but its 
arguments in that regard fall short. Insofar as INCOMPAS argues that 
the edge provider is not a customer of the BIAS provider, that disputes 
an underlying premise--that there exists an edge service in the first 
place--rather than explaining why such service, if it exists, should 
not be understood as derivative of BIAS. And insofar as INCOMPAS argues 
that the Commission ``should account for the fact that edge service may 
be provided to some customers via connections that are not reliant on 
BIAS,'' it misunderstands the nature of our finding. We do not conclude 
that services provided by edge providers are inherently derivative of 
BIAS or that they always are delivered via a BIAS connection. Rather, 
the issue only arises in our analysis as it relates specifically to 
traffic carried between edge providers and BIAS end users via a BIAS 
connection. INCOMPAS's argument thus does not identify any flaw in our 
conclusion as understood in the proper context. Nor does INCOMPAS 
otherwise demonstrate how or why any of this impacts our classification 
decision or decisions regarding open internet rules. Indeed, some of 
INCOMPAS's concerns appear entirely misplaced. The Commission did ``not 
reach the regulatory classification of the service that the Verizon 
court identified as being furnished to the edge'' in the 2015 Open 
Internet Order, nor do we do so here. Thus, INCOMPAS's concern about 
the Verizon court's description of BIAS providers as edge providers' 
``carriers'' is not implicated here.

5. Other Excluded Services

    194. Consistent with the manner in which the Commission has 
historically defined broadband internet access service, we exclude 
premises operators and end users who provide access to their BIAS 
connections but do not offer it on a mass-market, retail basis. Thus, 
to the extent coffee shops, bookstores, airlines, private end-user 
networks such as libraries and universities, and other businesses 
acquire broadband internet access service from a BIAS provider to 
enable patrons to access the internet from their respective 
establishments, the provision of such service by the premise operator 
would not itself be considered BIAS unless it were offered to patrons 
as a retail mass-market service. Likewise, when a user employs, for 
example, a wireless router or a Wi-Fi hotspot to create a personal Wi-
Fi network that is not intentionally offered

[[Page 45447]]

for the benefit of others, we find that he or she is not offering a 
broadband internet access service under our definition, because the 
user is not marketing and selling such service to residential 
customers, small businesses, and other end-user customers. Our decision 
to retain this approach received record support, and no opposition.
    195. We also continue to view CDNs, virtual private network (VPN) 
services, web hosting services, and data storage services as outside 
the scope of broadband internet access service. In classifying BIAS as 
a telecommunications service in the Order, we do not, and need not, 
reach the question of whether and how these services are classified 
under the Act. As evidenced in the record, these services are not 
``mass market'' services and/or do not provide the capability to 
transmit data to and receive data from all or substantially all 
internet endpoints. Commenters are unified in supporting the continued 
exclusion of such services from the definition of BIAS.
    196. We decline at this time to make any further determinations 
regarding whether other services fall within the scope of BIAS, given 
the paucity of the record concerning such services. Regarding 5G IoT 
services specifically, while Transatel acknowledges that any such 
determination ``requires the assessment of individual 5G IoT services . 
. . against the Commission[']s proposed definition of BIAS and mass 
market,'' Transatel nevertheless urges us to ``exclud[e] all 5G IoT 
services from the definition of BIAS and classify[ ] the[m] as either 
non-BIAS data services or enterprise services on a use case by use case 
basis.'' Transatel argues that doing so will ensure ``these valued 
services will continue to be provided not only to end-users but also 
enterprise customers without constraining innovation or investment.'' 
Although we anticipate that many 5G IoT services may qualify as non-
BIAS data services, enterprise services, or other edge services, we 
decline to provide a blanket exclusion of these services. We first note 
that Transatel does not provide any evidence to support its claim that 
failing to provide this blanket exclusion would constrain innovation or 
investment of 5G IoT services. Second, given the range of 5G IoT 
services that Transatel itself identifies, we find that the public 
interest would be best served by assessing these services on an 
individualized basis as necessary.
    197. We similarly also decline the suggestion of some commenters to 
explicitly exclude all in-flight entertainment and connectivity (IFEC) 
services from the scope of BIAS. The record suggests that not all IFEC 
services are alike, with some airlines operating as BIAS providers 
themselves, and other airlines, aircraft owners, or aircraft lessees 
acquiring services from unaffiliated providers. Given this variety, a 
general exclusion of IFEC services from the scope of BIAS may be 
inappropriately broad. As discussed above, consistent with the 2015 
Open Internet Order and the 2010 Open Internet Order, we continue to 
exclude airlines from the scope of BIAS when they are functioning in 
the role of premise operators. Additionally, by offering only vague 
notions of ``promot[ing] investment,'' protecting ``flexibility,'' 
limiting the ``potential adverse consequences of regulatory 
overreach,'' and avoiding amorphous concepts of ``harm,'' commenters 
fail to convince us that a specific determination about IFEC service is 
necessary. Gogo Business Aviation claims that considering IFEC services 
within the scope of BIAS could somehow compromise aircraft safety 
functions but fails to adequately explain why that would be the case or 
why an aircraft's use of safety functionality would violate Commission 
rules. Should evidence of specific harms arise which necessitates 
additional regulatory clarity for IFEC service, we will analyze the 
classification of such services on a case-by-case basis.

E. Mobile Broadband Internet Access Service Is Best Classified as a 
Commercial Mobile Service

    198. In addition to our decision to reinstate the classification of 
BIAS as a telecommunications service, we adopt our proposal to 
reinstate the classification of mobile BIAS as a commercial mobile 
service. We further conclude that, even if mobile BIAS does not meet 
the definition of ``commercial mobile service,'' it is the functional 
equivalent of a commercial mobile service and, therefore, not a private 
mobile service. As such, there is no obstacle to treating mobile BIAS 
``as a common carrier . . . under [the Communications Act].''
    199. Section 332(d)(1) of the Act defines ``commercial mobile 
service'' as ``any mobile service . . . that is provided for profit and 
makes interconnected service available (A) to the public or (B) to such 
classes of eligible users as to be effectively available to a 
substantial portion of the public, as specified by regulation by the 
Commission.'' The commercial mobile service provisions of the Act are 
implemented under Sec.  20.3 of the Commission's rules, which employs 
the term ``commercial mobile service'' (CMRS). We find that mobile BIAS 
meets the elements of this definition. Mobile BIAS is a ``mobile 
service'' because subscribers access the service through their mobile 
devices, and it is provided ``for profit'' because BIAS providers offer 
it to subscribers with the intent of receiving compensation. The Second 
CMRS Report and Order (59 FR 18493 (Apr. 19, 1994)) defined the 
statutory phrase ``for profit'' to include: ``any mobile service that 
is provided with the intent of receiving compensation or monetary 
gain.'' Mobile BIAS is also widely available to the public, without 
restriction on who may receive it. In the Second CMRS Report and Order, 
the Commission determined that a service is available ``to the public'' 
if it is ``offered to the public without restriction in who may receive 
it.'' We also find that mobile BIAS is an ``interconnected service.''
    200. Definition of Public Switched Network. Under section 332(d)(2) 
the term ``interconnected service'' means a ``service that is 
interconnected with the public switched network (as such terms are 
defined by regulation by the Commission).'' In the 2015 Open Internet 
Order, the Commission reached the conclusion that mobile BIAS is an 
interconnected service through the application of an updated definition 
of ``public switched network'' that included networks that use public 
IP addresses. In the RIF Order, the Commission reversed course, 
reinstating the prior definition of ``public switched network'' and 
concluding that mobile BIAS was not a commercial mobile service. The 
Commission found the prior definition to be ``more consistent with the 
ordinary meaning and commonly understood definition of the term and 
with Commission precedent.''
    201. In the 2023 Open Internet NPRM, we proposed reinstating the 
definition of ``public switched network'' from the 2015 Open Internet 
Order and indicated our belief that the Commission's decision in the 
RIF Order failed ``to align with the technological reality and 
widespread use of mobile BIAS.'' We indicated our view that the 
proposed definition, which included IP addresses, ``embodies the 
current technological landscape and the widespread use of mobile 
broadband networks, and is therefore more consistent with the 
Commission's recognition that the public switched network will grow and 
change over time.'' We proposed that, based on this reinstated 
definition, mobile BIAS would be an interconnected service and we 
sought comment on our analysis and proposed approach.

[[Page 45448]]

    202. Commenters express differing views of the Commission's 
proposal. Professor Scott Jordan and New America's Open Technology 
Institute express support for readopting the definition of the public 
switched network from the 2015 Open Internet Order. New America's Open 
Technology Institute notes that ``public switched network'' in section 
332 ``is not limited to the legacy telephone network and should be 
updated.'' In contrast, CTIA and Free State Foundation oppose 
readopting the definition and instead express support for the reasoning 
in the RIF Order, with CTIA arguing that ``public switched network'' 
``refers unambiguously to the telephone network.'' CTIA misstates the 
legislative history here. The portion it cites is actually language 
from a Conference Report explaining that the House bill, which was not 
adopted, used the term ``public switched telephone network.'' That 
report language was mistaken because the House bill (like the Senate 
bill), as CTIA acknowledges, used the term ``public switched network'' 
(without ``telephone''). The Conference Report went on to explain that 
the Senate amendment ``expressly recognizes the Commission's authority 
to define the terms used in defining `commercial mobile service' '' and 
that the Conference Report was adopting the Senate definitions with 
minor changes. This is further evidence that the statutory language 
means what it says, i.e., that the Commission has authority to define 
these terms to reflect current technology and that it is not limited to 
telephones. Wired Broadband et al. also oppose the proposed definition 
and argue that evidence of the growth and widespread use of mobile 
broadband services provides insufficient justification for readopting 
the revised definition.
    203. We adopt our proposal to reinstate the definition of ``public 
switched network'' from the 2015 Open Internet Order, and we define it 
to mean ``the network that includes any common carrier switched 
network, whether by wire or radio, including local exchange carriers, 
interexchange carriers, and mobile service providers, that use[s] the 
North American Numbering Plan, or public IP addresses, in connection 
with the provision of switched services.'' As the Commission determined 
in the 2015 Open Internet Order, the definition we adopt recognizes 
``that today's broadband internet access networks use their own unique 
address identifier, IP addresses, to give users a universally 
recognized format for sending and receiving messages across the country 
and worldwide.'' CTIA and the Wired Broadband et al. highlight 
technical distinctions between the telephone networks and IP-based 
networks. CTIA, for example, states that ``[t]he telephone network uses 
North American Numbering Plan numbers across a single network, while 
the internet is a decentralized network of networks that relies on IP 
addresses and uses a variety of protocols and architectures for 
different purposes.'' These operational characteristics, however, do 
not govern our determination of whether mobile BIAS should be 
considered a commercial mobile service under the Commission's rules.
    204. We find that the RIF Order's and opponents' assertions, that 
the term ``public switched network'' may only be defined to mean the 
traditional telephone network, fail to give sufficient weight to 
Congress's express delegation of authority to the Commission to define 
the term ``public switched network'' and to the Commission's own prior 
recognition that the definition of ``public switched network'' should 
evolve over time. Congress, in section 332(d)(2), defined the term 
``interconnected service'' to mean a ``service that is interconnected 
with the public switched network (as such terms are defined by 
regulation by the Commission).'' The argument that the Commission may 
not define ``public switched network'' to mean anything other than the 
public switched telephone network runs counter to the statutory 
language in section 332 because, if Congress had intended ``public 
switched network'' to mean only the public switched telephone network, 
it would have included the word ``telephone.'' Instead, Congress not 
only used the broader term ``public switched network'' but also gave 
the Commission express authority to define the term. Congress's 
delegation of authority to the Commission would have been unnecessary 
if Congress had intended the term to refer only to the public switched 
telephone network based on a regulatory understanding asserted to exist 
before 1993. Wired Broadband et al. suggest that Congress failed to use 
the term ``public switched telephone network'' in the statute 
``precisely because it was commonly understood that PSN and PSTN were 
identical, the terms were used interchangeably.'' As a fundamental 
matter, we disagree and find that this argument fails to give 
sufficient weight to the text of the statute and to Congress's express 
delegation of authority to the Commission to define the term ``public 
switched network.'' But independently, even on its terms, their 
argument fails. Under section 332(d)(1), CMRS must ``make[ ] 
interconnected service available,'' and section 332(d)(2), in turn, 
provides that ``interconnected service'' ``means service that is 
interconnected with the public switched network.'' But even if ``public 
switched network'' were understood as limited to the public switched 
telephone network, we find that mobile BIAS is interconnected with the 
public switched telephone network by virtue of VoIP applications.
    205. Nothing in the text of the ``public switched network'' 
definition requires that the Commission's implementing definitional 
regulations be limited to telephone service. Even at the time of the 
enactment of section 332(d)(2), such terminology was understood as a 
technological matter to be potentially more expansive than mere 
telephone service. Exercising the Commission's authority to define 
``public switched network'' by regulation to update the definition with 
evolving technological and marketplace realities also better reflects 
the broader statutory context. Section 1 of the Act explains that 
Congress created the Commission ``to make available, so far as 
possible, . . . a rapid, efficient, Nation-wide, and world-wide wire 
and radio communication service with adequate facilities at reasonable 
charges, for the purpose of the national defense, [and] for the purpose 
of promoting safety of life and property through the use of wire and 
radio communications.'' And section 706 of the 1996 Act directs the 
Commission to ``encourage the deployment on a reasonable and timely 
basis of advanced telecommunications capability to all Americans.'' 
Given the increasing importance of BIAS, these objectives can be 
advanced more effectively if mobile BIAS is classified as a commercial 
mobile service, strengthening our ability to adopt measures to promote 
such infrastructure deployment through regulated access to pole 
attachments and universal service support, the ability to deploy 
infrastructure, and the Commission's enhanced ability to protect public 
safety and national security through protections afforded by section 
214. Although CMRS providers currently have forbearance from domestic 
section 214 requirements, they remain subject to international section 
214 requirements. And even as to domestic section 214 requirements, the 
Commission could revisit forbearance from those requirements if 
necessary to better enable the agency to address public safety and 
national security

[[Page 45449]]

concerns. It also is clear from the legislative history that Congress 
expected some services that were previously private land mobile 
services to become common carrier services as a result of the enactment 
of section 332. The D.C. Circuit affirmed this interpretation in the 
USTA decision.
    206. In exercising its authority and defining ``public switched 
network'' in the Second CMRS Report and Order, the Commission 
determined that the term ``should not be defined in a static way.'' The 
Commission considered but rejected calls to define ``public switched 
network'' as the public switched telephone network and found that a 
broader definition was more consistent with the use of the term 
``public switched network'' in section 332 rather ``than the more 
technologically based term `public switched telephone network.' '' The 
Commission recognized that the public switched network was 
``continuously growing and changing because of new technology and 
increasing demand.'' Consistent with these determinations, in the 2015 
Open Internet Order, the Commission found that it was necessary to 
update the definition of ``public switched network'' to reflect the 
growth and changes to the network that occurred since the time the 
Commission adopted its original definition.
    207. In the Order, consistent with the Commission's original 
determination that the definition of ``public switched network'' should 
evolve over time, we update the definition to reflect significant 
changes that have occurred in the technological landscape for mobile 
services. Since the time the Commission defined ``public switched 
network'' for purposes of section 332 in 1994, mobile broadband 
technologies have developed and become ubiquitous. In 1994, the 
Commission chose to define ``public switched network'' with reference 
to telephone numbers ``because participation in the North American 
Numbering Plan provides the participant with ubiquitous access to all 
other participants in the Plan,'' concluding that ``this approach to 
the public switched network is consistent with creating a system of 
universal service where all people in the United States can use the 
network to communicate with each other.'' This is the reality of the 
internet, and IP addresses, today. Mobile broadband services are 
available everywhere and millions of subscribers use them to 
communicate. Evidence in the record shows, for example, that 85% of 
Americans own smartphones. In 2022, 72.6% of adults lived in wireless-
only households with no landline. In addition, data show that Americans 
are using their smartphones more than ever, with more than 73 trillion 
megabytes of mobile data traffic exchanged in the United States in 
2022, representing a 38% increase from the previous year. Continued 
growth of mobile BIAS is expected, with one forecast predicting that 
there will be 430 million 5G mobile subscriptions in North America by 
2029. We find that it serves the public interest to adopt a definition 
of ``public switched network'' that reflects today's technological 
landscape for mobile communications technology and the widespread use 
of mobile broadband services. We disagree with the RIF Order's finding 
that the Commission's analysis from the 2015 Open Internet Order placed 
undue emphasis on the wide availability of mobile BIAS in finding it to 
be an interconnected service. We likewise disagree with comments 
arguing that data showing the prevalence and use of mobile broadband 
technologies are irrelevant to a determination about whether to adopt a 
modernized definition of ``public switched network.'' We note that 
while Wired Broadband et al. also argue that ``smartphone penetration 
has barely changed (by less than 3% of the population) since 2018,'' 
they do not dispute the evolution in the growth and use of mobile 
broadband services that has occurred since the time the Commission 
adopted the 1994 definition of ``public switched network.'' That 
evolution of mobile communications technology is the basis for the 
action we take in the Order to adopt a modernized definition of the 
term. To the contrary, we find that these data provide evidence of the 
extent to which today's mobile broadband networks provide an essential 
and universal means of communication among members of the public which 
is essential to our determination that mobile BIAS is a commercial 
rather than a private mobile service. Indeed, given the substantial 
changes in technology and the telecommunications market since 1994, it 
does not make sense to disregard mobile broadband networks in the 
Commission's current definition of ``public switched network.'' This is 
especially so because, in distinguishing between the ``commercial 
mobile service'' and ``private mobile service'' definitions in the Act, 
it is only logical to take into account the ubiquity of technology as 
it stands today, and thereby interpret as commercial a service offered 
to, and universally adopted by, the public.
    208. We also disagree with the RIF Order and arguments in the 
record that the definition we adopt is impermissible because it does 
not refer to a ``single'' network. CTIA contends that there ``is no 
single, overarching network that combines the telephone network and the 
internet.'' This argument fails to recognize that the Commission's 
definition of ``public switched network'' has always referred to a 
composite of networks, covering ``any common carrier switched network, 
whether by wire or radio, including local exchange carriers, 
interexchange carriers, and mobile service providers.'' Our decision in 
the Order to include networks that use public IP addresses as part of 
the public switched network follows the same approach and treats mobile 
voice and broadband networks as components of a single public switched 
network. In their respective comments, Wired Broadband et al. and ICG 
oppose defining ``public switched network'' to include networks that 
use IP addresses, noting that the Commission lacks jurisdiction over 
the internet. We clarify that the modernized definition of public 
switched network we adopt in Sec.  20.3 of the Commission's rules in no 
way asserts Commission jurisdiction over the internet at large or over 
the assignment or management of IP addressing by the Internet Numbers 
Registry System.
    209. Mobile BIAS Is an Interconnected Service. We conclude that 
mobile BIAS is an interconnected service because it is interconnected 
with the ``public switched network,'' as we define it in the Order. 
Mobile BIAS is also an interconnected service because it is a broadly 
available mobile service that gives users the ability to send and 
receive communications to and from all other users of the internet. We 
find that the best reading of section 332 is reflected in the 
Commission's determinations in the Second CMRS Report and Order that, 
by using the phrase ``interconnected service,'' Congress intended that 
mobile services should be classified as commercial services if they 
make interconnected service broadly available through their use of the 
``public switched network'' and that ``the purpose underlying the 
congressional approach . . . is to ensure that a mobile service that 
gives its customers the capability to communicate to or receive 
communication from other users of the public switched network should be 
treated as a common carriage offering.'' New America's Open Technology 
Institute notes that Congress intended to differentiate between 
services that were broadly available to the public and those that were 
private special purpose services, such as taxi dispatch services.

[[Page 45450]]

CTIA argues that the statute does not limit private mobile services to 
such types of services and that instead the only relevant question 
under the statute in determining whether a service is a private mobile 
service is whether or not the service is interconnected. Wired 
Broadband et al. similarly argue that the statutory definition is the 
only relevant consideration for determining what services are private 
mobile services. Even though section 332(d)(3) does not limit private 
mobile service to specific types of mobile services, it does provide 
that private mobile services are those mobile services that are not 
commercial mobile services or functionally equivalent. For the reasons 
outlined above, we find that mobile BIAS is an interconnected 
commercial mobile service and therefore by statute cannot be private 
mobile service. Moreover, we find more persuasive the argument that 
private mobile service is intended to refer to those services offered 
only to a more limited group of users, such as taxi fleets. This 
follows from both the ordinary meaning of the terms ``commercial'' and 
``private'' and the state of the marketplace at the time of the 1996 
Act. By contrast, mobile services classified as private are those 
mobile services that do not make communications broadly available. The 
Commission found in the 2015 Open Internet Order that ``mobile 
broadband internet access service fits the [commercial mobile service] 
classification as millions of subscribers use it to send and receive 
communications on their mobile devices every day.'' Today, as the data 
described above demonstrate, it is clear that this remains the case as 
millions of Americans continue to communicate using mobile broadband 
services.
    210. We also find that mobile BIAS is an interconnected service for 
the additional reason that it provides users with the capability to 
communicate with other users of the internet and with people using 
telephone numbers through VoIP applications. In the 2015 Open Internet 
Order, the Commission found that ``users on mobile networks can 
communicate with users on traditional copper based networks and IP 
based networks, making more and more networks using different 
technologies interconnected.'' The Commission further identified mobile 
VoIP, as well as over-the-top mobile messaging, as ``among the 
increasing number of ways in which users communicate indiscriminately 
between [North American Numbering Plan (NANP)] and IP endpoints on the 
public switched network.'' In the RIF Order, the Commission disagreed 
and found that the ``definition of `interconnected service' focuses on 
the characteristics of the offered mobile service itself.'' In the 2023 
Open Internet NPRM, we sought comment on whether ``there have been any 
material changes in technology, the marketplace, or other facts that 
would warrant refinement or revision of the analysis regarding the 
interconnected nature of mobile BIAS from the 2015 Open Internet 
Order.''
    211. We find that there is no evidence in the record showing 
material changes in technology or the marketplace that would warrant a 
revision to the Commission's 2015 analysis of the interconnected nature 
of mobile BIAS. To the contrary, evidence shows that mobile BIAS users 
continue to communicate using these tools and that today ``VoIP 
applications are even more functionally integrated'' into mobile 
broadband services than they were in 2015. Although some commenters 
argue that it is the VoIP applications themselves, rather than mobile 
BIAS, that should be viewed as providing interconnected service, we 
find that such arguments fail to recognize the extent to which VoIP 
applications have become ``functionally integrated'' into mobile 
broadband services. CTIA also argues that, even with VoIP, mobile BIAS 
should not be viewed as interconnected because IoT devices, such as 
internet-connected lighting systems or internet-connected security 
cameras, cannot make calls. We disagree and conclude that we may find 
mobile BIAS to be an interconnected service even if there are some 
other broadband services or devices that are not designed to provide 
communications. Our findings in the Order apply in the context of BIAS, 
and to the extent that other types of broadband services do not meet 
the definition of BIAS, they are not within the scope of the Order. 
Moreover, as the D.C. Circuit recognized in the USTA decision, 
``[n]othing in the statute . . . compels the Commission to draw a 
talismanic (and elusive) distinction between (i) mobile broadband alone 
enabling a connection, and (ii) mobile broadband enabling a connection 
through use of an adjunct application such as VoIP.'' In the Order, in 
view of the evidence regarding the extent to which VoIP applications 
continue to be integrated with mobile BIAS, we readopt the Commission's 
analysis from the 2015 Open Internet Order and find that mobile BIAS 
may be considered an interconnected service because it provides users 
with the capability to communicate with other users of the internet and 
with people using telephone numbers through VoIP applications. While 
the D.C. Circuit in the Mozilla decision upheld the RIF Order's 
findings regarding the distinction between mobile VoIP applications and 
mobile BIAS itself, the Court nonetheless recognized that the 
Commission has discretion to make such a determination.
    212. In connection with this approach, in the 2023 Open Internet 
NPRM we sought comment about whether we should also readopt the 2015 
Open Internet Order's revised definition of ``interconnected service'' 
in Sec.  20.3 of the Commission's rules. We noted that, in the 2015 
Open Internet Order, the Commission redefined ``interconnected 
service'' to mean a service that gives subscribers the ability to 
``communicate to or receive communications from other users of the 
public switched network,'' removing the requirement that such service 
provide the ability to communicate with all other users of the public 
switched network. The RIF Order reverted to the prior definition, 
concluding that ``the best reading of `interconnected service' is one 
that enables communication between its users and all other users of the 
public switched network.'' In the 2023 Open Internet NPRM, we sought 
comment on whether it is necessary to return to the definition of 
``interconnected service'' in the 2015 Open Internet Order to ensure 
that all appropriate services are covered by the definition. Professor 
Jordan expresses support for readopting the revised definition from the 
2015 Open Internet Order and argues that the statute does not require 
interconnected services to give subscribers the ability to communicate 
to all other users of the public switched network and that such a 
requirement is inconsistent with how mobile services actually operate.
    213. We readopt the revised definition from the 2015 Open Internet 
Order and define ``interconnected service'' to mean a service that 
gives subscribers the ability to communicate to or receive 
communications from other users of the public switched network. We 
remove the requirement adopted by the Commission in the RIF Order that 
such service provide the ability to communicate with all other users of 
the public switched network. We conclude that mobile services that 
provide the ability for users to communicate with others through the 
public switched network should be considered ``interconnected'' even if 
they are limited in certain ways and do not provide the ability to 
communicate with all other users on the network. We find that revising 
the definition in this way

[[Page 45451]]

will clarify the scope of services that may be viewed as interconnected 
and is consistent with section 332's focus on differentiating between 
mobile services that are available ``to the public'' or to ``a 
substantial portion of the public'' and those that are not.
    214. In addition, because we also have reclassified mobile BIAS as 
a telecommunications service, we find that classifying it as a 
commercial mobile service will avoid the inconsistency that would 
result if the service were both a telecommunications service and a 
private mobile service. The Commission explained this reasoning in the 
2015 Open Internet Order, and we adopt our proposal from the 2023 Open 
Internet NPRM to apply a consistent rationale here. Because we have 
determined mobile BIAS to be a telecommunications service, we find that 
designating it also as a commercial mobile service subject to Title II 
is most consistent with Congressional intent to apply common carrier 
treatment to telecommunications services. Consistent with the 
Commission's analysis in 2015, we find that classifying mobile BIAS as 
a commercial mobile service is necessary to avoid a statutory 
contradiction that would result if the Commission were to conclude both 
that mobile BIAS was a telecommunications service and also that it was 
not a commercial mobile service. A statutory contradiction would result 
from such a finding because, while the Act requires that providers of 
telecommunications services be treated as common carriers, it prohibits 
common carrier treatment of mobile services that do not either meet the 
definition of commercial mobile service or serve as the functional 
equivalent of commercial mobile service. We find that classifying 
mobile BIAS as a commercial mobile service avoids this statutory 
contradiction and is also most consistent with the Act's intent to 
apply common carrier treatment to providers of telecommunications 
services.
    215. Functional Equivalence. In the alternative, even to the extent 
that mobile BIAS were understood to fall outside the definition of 
``commercial mobile service,'' we conclude that it is also the 
functional equivalent of a commercial mobile service and, thus, not 
private mobile service. In the 2015 Open Internet Order, the Commission 
found that mobile BIAS was functionally equivalent to commercial mobile 
service because, ``like commercial mobile service, it is a widely 
available, for profit mobile service that offers mobile subscribers the 
capability to send and receive communications on their mobile device to 
and from the public.'' The RIF Order found that the 2015 Open Internet 
Order's focus on the public's ``ubiquitous access'' to mobile BIAS 
alone was ``insufficient'' to establish functional equivalency and that 
the test established in the Second CMRS Report and Order provided a 
more thorough consideration of factors of whether a service is closely 
substitutable for a commercial mobile service.
    216. In the 2023 Open Internet NPRM, we sought comment on both of 
these analyses and on whether we should adopt ``any other or different 
definition of `functional equivalent.' '' CTIA and Wired Broadband et 
al. argue that the Commission cannot find that mobile BIAS is 
functionally equivalent to commercial mobile service by assessing how 
widely it is used but instead it must assess functional equivalence 
based on the factors outlined in the Commission's rules, such as 
whether the services are substitutable, whether a change in the price 
of one service would prompt customers to change to the other, and 
whether the service is advertised to the same targeted market. Under 
these factors, they contend, mobile BIAS is not functionally equivalent 
to commercial mobile service.
    217. We disagree with these arguments and find that, to the extent 
mobile BIAS falls outside the definition of commercial mobile service, 
it is the functional equivalent of a commercial mobile service. 
Consistent with our proposal in the 2023 Open Internet NPRM, and with 
the analysis in the 2015 Open Internet Order, we find that mobile BIAS 
is the functional equivalent of commercial mobile service because like 
commercial mobile service, it is a widely available, for-profit mobile 
service that offers mobile subscribers the capability to send and 
receive communications on their mobile device to and from the public. 
We disagree with CTIA's argument that this finding relies impermissibly 
on an overly general description of mobile BIAS to show functional 
equivalence. To the contrary, we find that the fact that mobile BIAS is 
used to send and receive communications broadly among members of the 
public is a critical factor in assessing its functional equivalence to 
commercial mobile service. Although mobile BIAS uses IP addresses 
rather than telephone numbers, consumers use both mobile voice service 
and mobile BIAS to communicate with others on their mobile devices. The 
fact that mobile BIAS may be used for some purposes that are different 
than what mobile voice services are used for does not mean that the 
services do not provide functional equivalence with respect to their 
capability to send and receive communications.
    218. As the RIF Order acknowledges, the Commission has express 
delegated authority from Congress to make a policy determination on 
whether a particular mobile service may be the functional equivalent of 
a commercial mobile service. Specifically, section 332 of the Act 
defines ``private mobile service'' as ``any mobile service . . . that 
is not a commercial mobile service or the functional equivalent of a 
commercial mobile service, as specified by regulation by the 
Commission.'' While the factors outlined in Sec.  20.3 of the 
Commission's rules may be used in making a determination about the 
functional equivalence of a particular service, they do not prohibit 
the Commission from designating a category of service to be the 
functional equivalent of a commercial mobile service in a rulemaking 
and they do not prevent us from considering other factors in making our 
determination regarding the functional equivalence of mobile BIAS. 
Paragraph (c) of the ``commercial mobile radio service'' definition 
notes that ``[a] variety of factors may be evaluated'' to make a 
determination regarding functional equivalence ``including'' the 
enumerated factors. Based on this authority, the reasons outlined above 
and in the 2015 Open Internet Order, and in light of the continued 
widespread use and availability of mobile broadband services, we find 
that mobile BIAS is the functional equivalent of commercial mobile 
service, and is therefore not private mobile service.
    219. Finally, in the 2023 Open Internet NPRM, we sought comment on 
the potential impact of applying openness requirements to mobile 
providers and on the ``policy consequences that commenters believe may 
result from the proposed reclassification of mobile BIAS.'' Several 
commenters stress the importance of applying the same open internet 
rules to fixed and mobile BIAS. CTIA, Verizon, and AT&T, however, 
oppose openness requirements for mobile providers contending that such 
requirements are unnecessary and may discourage investment and 
innovation in mobile broadband networks.
    220. We find that returning mobile BIAS to its classification as a 
commercial mobile service and reinstating openness requirements on 
mobile BIAS providers will help protect mobile broadband consumers 
while allowing mobile providers to continue to compete successfully and 
develop

[[Page 45452]]

new products and services. We agree with commenters who note that 
because consumers use both fixed and mobile BIAS regularly, it is 
critical that we apply the same rules to both services. In addition, as 
commenters point out, mobile broadband services are particularly 
important to certain groups, such as low-income consumers, who may not 
be able to afford to subscribe to both fixed and mobile broadband 
service, and it is critical to ensure that these consumers are able to 
benefit from a free and open internet. The Commission's previous 
experience applying open access rules to upper 700 MHz C Block 
licensees has shown that mobile operators subject to openness 
requirements have continued to compete successfully in the marketplace, 
and we expect mobile BIAS providers will continue to compete 
successfully under the openness requirements we adopt in the Order. 
ADTRAN contends that the C Block openness requirements drove down the 
price of C Block spectrum at auction. ADTRAN Comments at 32. While any 
number of factors may affect the price of any spectrum at auction, it 
is clear that Upper 700 MHz C Block licensees, including Verizon, 
invested heavily in deploying mobile broadband service over their C 
Block spectrum.

F. Restoring the Telecommunications Service Classification of Broadband 
Internet Access Service Is Lawful

    221. Our classification of BIAS as a telecommunications service is 
fully and sufficiently justified under the Commission's longstanding 
authority and responsibility, provided by Congress, to classify 
services subject to our jurisdiction, as necessary. This authority and 
responsibility is not supplanted by the major-questions doctrine.
1. The Commission Has the Authority and Responsibility To Classify BIAS
    222. The Commission's authority and responsibility to classify 
services subject to our jurisdiction, as necessary, is borne out of 
Congress's well-established and longstanding reliance on the Commission 
to exercise this authority. Our decision to revisit the classification 
of BIAS derives from ordinary administrative law principles and the 
factual circumstances surrounding the RIF Order. And the classification 
decision we reach is consistent with the broader context of the Act.
    223. Congress Authorized and Expected the Commission to Classify 
BIAS. No one disputes that internet access services are within the 
Commission's subject-matter jurisdiction and historically have been 
supervised by the Commission. Congress created the Commission ``[f]or 
the purpose of regulating interstate and foreign commerce in 
communication by wire and radio so as to make available, so far as 
possible, to all people of the United States . . . a rapid, efficient, 
Nation-wide, and world-wide wire and radio communication service with 
adequate facilities at reasonable charges, for the purpose of the 
national defense, [and] for the purpose of promoting safety of life and 
property through the use of wire and radio communication.'' Section 2 
of the Act grants the Commission jurisdiction over ``all interstate and 
foreign communication by wire or radio.''
    224. Since the original enactment of the Communications Act in 
1934, Congress routinely has specified regulatory regimes that apply to 
particular communications services or service providers that meet 
statutorily defined categories, and Congress has relied on the 
Commission to determine whether a particular service or provider falls 
within the statutory definitions that trigger those regulatory 
frameworks. For example, when the Act originally was enacted in 1934, 
Congress adopted the statutory category of ``common carrier,'' and 
specified the associated regulatory framework under Title II for such 
providers, leaving it to the Commission to determine which specific 
entities were common carriers based on the statutory criteria, drawing 
on the historical backdrop of common carriage. For example, common 
carriers are, among other things, subject by default to various rate 
regulation, accounting, tariffing, market entry, and service 
discontinuance requirements, implemented by the Commission. Likewise, 
in 1934 Congress defined ``radio station[s]'' and ``broadcasting'' in 
the Act, and specified the regulatory regimes that the Commission was 
to apply when those definitions were met. For example, radio stations 
and broadcasters are, among other things, subject by default to various 
licensing and authorization requirements to ensure their operation 
consistent with the public interest, implemented by the Commission. 
Congress did so again, for instance, in the 1984 Cable Act for ``cable 
operator[s]'' and ``cable service.'' For example, cable operators are, 
among other things, subject by default to channel carriage requirements 
and ownership restrictions implemented by the Commission. In 1993, 
Congress did the same with respect to ``commercial mobile service'' and 
``private mobile service.'' For example, commercial mobile service 
providers are, among other things, subject by default to the 
requirements governing common carriers under Title II of the 
Communications Act, while private mobile service providers are not. It 
did so again in 1994 in the Communications Assistance for Law 
Enforcement Act (CALEA), for ``telecommunications carriers'' as defined 
there. For example, entities that qualify as telecommunications 
carriers for purposes of CALEA are, among other things, subject by 
default to the requirement to file with the Commission and maintain up-
to-date System Security and Integrity plans designed to help preserve 
the ability of law enforcement agencies to conduct electronic 
surveillance while protecting the privacy of information outside the 
scope of the investigation. When Congress enacted the definitional 
frameworks and associated regulatory regimes to be applied by the 
Commission in the 1996 Act, it continued its well-established, 
longstanding approach reflected in those historical examples--an 
approach that Congress has since continued to follow. Classification 
decisions under each of those frameworks are consequential in their own 
way, yet it is well established that Congress relies on the Commission 
to make just such determinations.
    225. Provisions enacted as part of the 1996 Act amply detail 
Congress' expectation that the Commission would classify services and 
providers under the ``telecommunications service'' and ``information 
service'' statutory definitions. The Act is replete with examples of 
provisions expressly to be implemented by the Commission that turn on 
the Commission's interpretation and application of those statutory 
definitions to classify particular services and service providers. As 
relevant here, for example:
     Section 10 of the Act directs the Commission to forbear 
from applying provisions of the Act or Commission rules to 
telecommunications carriers or telecommunications services if certain 
statutory criteria are met.
     Section 11 of the Act requires the Commission to 
biennially review its rules ``that apply to the operations or 
activities of any provider of telecommunications service'' and 
determine if any such rules are no longer necessary in the public 
interest based on certain marketplace developments.
     Section 224 of the Act requires the Commission to ensure 
just and reasonable rates, terms, and conditions for pole attachments, 
among other

[[Page 45453]]

circumstances, when provided by a telecommunications carrier to a 
provider of telecommunications service.
     Sections 251 and 252 of the Act direct the Commission to 
effectuate certain market-opening requirements for telecommunications 
carriers, including setting rules to be applied by State commissions 
when arbitrating interconnection agreements among carriers to implement 
those statutory requirements.
     Section 253 directs the Commission to preempt certain 
State or local requirements that actually or effectively prohibit the 
ability of any entity to provide any telecommunications service.
     Section 254 of the Act requires the Commission to adopt 
rules to preserve and advance universal service, defined principally in 
terms of ``an evolving level of telecommunications services'' 
established by the Commission, and to fund universal service support by 
contributions from ``[e]very telecommunications carrier that provides 
interstate telecommunications services'' along with certain other 
``provider[s] of interstate telecommunications,'' and to rely on 
certain principles to inform its universal service rules, including 
providing access to telecommunications and information services.
     Section 272 of the Act gives the Commission the 
responsibility to implement certain separate affiliate safeguards for 
the former BOCs in connection with, among other things, the provision 
of certain information services.
    These illustrative examples, all enacted as part of the 1996 Act, 
amply demonstrate the Commission's authority--and responsibility, as 
necessary--to classify services under the definitional criteria 
established by the 1996 Act.
    226. Congress reaffirmed that it had granted the Commission this 
authority when, less than two years after the 1996 Act's passage, it 
directed the Commission to explain, in what came to be known as the 
Stevens Report, how the new statutory terms apply ``with respect to 
internet access'' for the purposes of universal service administration 
and support. As Public Knowledge notes, ``[t]he Stevens Report 
represents . . . a clear demonstration that Congress had committed the 
question of classification of services to the FCC,'' and ``it is 
undeniable that the Stevens Report reflects the FCC's interpretation--
supported by the initial report requirement from Congress--that 
Congress assigned it the authority to classify services as either 
information services or telecommunications services.'' Given the 
Commission's longstanding, well-established authority and 
responsibility to classify services, we disagree with commenters who 
contend that the Commission does not have such authority or should 
defer to Congress to determine the classification of BIAS.
    227. Revisiting the Classification of BIAS Is Not Inherently 
Suspect. We conclude that our decision to revisit the classification of 
BIAS does not somehow render it inherently suspect. As a threshold 
matter, it derives from ordinary administrative-law principles. The 
U.S. Supreme Court has observed that there is ``no basis in the 
Administrative Procedure Act [(APA)] or in our opinions for a 
requirement that all agency change be subjected to more searching 
review. . . . [I]t suffices that the new policy is permissible under 
the statute, that there are good reasons for it, and that the agency 
believes it to be better, which the conscious change of course 
adequately indicates.'' Relevant precedent holds that we need only 
``examine the relevant data and articulate a satisfactory explanation 
for [our] action,'' a duty we fully satisfy here. The ``possibility of 
drawing two inconsistent conclusions from the evidence does not prevent 
an administrative agency's finding from being supported by substantial 
evidence.'' Consistent with these principles, the Commission's reasoned 
determination in the Order that classifying BIAS as a 
telecommunications service is superior first and foremost as a matter 
of textual interpretation--while also recognizing that public policy 
supports the change in direction--is sufficient to justify our action 
under ordinary administrative-law principles, even absent any new facts 
or changes in circumstances.
    228. But even assuming, arguendo, that an agency must go beyond 
ordinary administrative-law principles and show new facts to justify 
its action, our decision to revisit the classification of BIAS is 
particularly warranted under the factual circumstances here. Our 
classification of BIAS flows in significant part from concerns with the 
RIF Order highlighted in Mozilla--to ``bring the law into harmony with 
the realities of the modern broadband marketplace''--which is itself a 
sufficient justification for our classification here. The U.S. Supreme 
Court observed in Brand X that ``the agency . . . must consider varying 
interpretations and the wisdom of its policy on a continuing basis.'' 
Separately and secondarily, our classification decision accounts for 
certain statutory responsibilities and policy concerns--especially 
safeguarding public safety and providing a uniform regulatory framework 
for BIAS--where the RIF Order's approach was called into doubt by 
Mozilla. The Commission's attempt to respond to the Mozilla remand has 
remained subject to the petitions for reconsideration, which we resolve 
in the Order, and a petition for judicial review held in abeyance 
pending further Commission action. Given the Mozilla court's palpable 
criticism of the RIF Order's regulatory approach to BIAS, and that the 
merits of this approach were never brought to a final resolution, we 
find it especially appropriate for the Commission to resolve these 
lingering disputes now.
    229. Reclassification Is Consistent with the Broader Context of the 
Act. We also find that our classification of BIAS as a 
telecommunications service accords with the goals and directives found 
in the 1996 Act. To begin with, section 706, which while worded in 
terms of encouraging the deployment of ``advanced telecommunications 
capability,'' has long been understood to encompass the goal of 
encouraging broadband internet access. That ``advanced 
telecommunications capability'' is not identical to BIAS as defined for 
purposes of the Order does not diminish the substantial extent to which 
section 706 has been--and is--understood as encouraging BIAS 
deployment. Congress specifically directed the Commission to encourage 
the deployment of advanced telecommunications capability ``by 
utilizing, in a manner consistent with the public interest, 
convenience, and necessity, price cap regulation, regulatory 
forbearance, measures that promote competition in the local 
telecommunications market, or other regulating methods that remove 
barriers to infrastructure investment.'' The list of specific 
regulating methods--price cap regulation, regulatory forbearance, 
measures that promote competition in the local telecommunications 
market--all are authorities the Commission has long had, or that were 
granted by the 1996 Act, with respect to telecommunications services.
    230. The Mozilla court's critiques of the RIF Order highlight 
specific areas where the objectives of section 706 of the 1996 Act--and 
the operative provisions of the Communications Act itself--would be 
more effectively carried out if BIAS is classified as a 
telecommunications service. As we discuss above, reclassification will 
further enable the Commission to promote broadband access by granting

[[Page 45454]]

to BIAS-only providers just and reasonable access and rates for pole 
attachments under section 224, a key pro-competitive provision of the 
Act that the Mozilla court chastised the RIF Order for failing to 
properly grapple with when taking such rights from BIAS-only providers. 
The D.C. Circuit in Mozilla also was concerned about the effect of the 
RIF Order on the continued availability of funding for BIAS through 
universal service support--a tool Congress provided in section 254 of 
the 1996 Act to address barriers to infrastructure investment. 
Expressing particular concern with respect to Lifeline support in light 
of the arguments raised on review, the court highlighted that section 
254(c)(1) ``declared that `[u]niversal service is an evolving level of 
telecommunications services''' and sections 254(e) and 214(e) 
``tethered Lifeline eligibility to common-carrier status.'' Our 
classification recognizes that BIAS itself meets the criteria for 
inclusion in ``universal service'' under section 254(c)(1) and 
therefore provides a direct basis for support that is not contingent on 
BIAS's relationship to the network facilities used to offer voice 
service. Furthermore, reclassification would enable the Commission to 
provide universal service support to BIAS providers that solely supply 
BIAS.
    231. By reclassifying BIAS as a telecommunications service, we also 
help to effectuate the intent of section 706 of the 1996 Act by 
empowering the Commission to focus section 253 on actions relating to 
BIAS, an advanced telecommunications capability. In addition to the 
market-opening amendments to pole access under section 224 of the Act, 
the 1996 Act also sought to open markets to competition by granting 
authority to the Commission in section 253 to preempt ``State or local 
legal requirement[s that] may prohibit or have the effect of 
prohibiting the ability of any entity to provide any interstate or 
intrastate telecommunications service.'' If the Commission is to truly 
realize section 706's command to encourage the deployment of advanced 
telecommunications capability through ``measures that promote 
competition in the local telecommunications market,'' it should not 
have to resort to applying section 253 to a co-mingled 
telecommunications service that may not even constitute ``advanced 
telecommunications capability.''
    232. Contrary to the RIF Order's suggestion, our classification of 
BIAS as a telecommunications service is not undercut by section 230 of 
the Act, which was enacted as part of the 1996 Act. Section 230(b)(2) 
adopts the policy of ``preserv[ing] the vibrant and competitive free 
market that presently exists for the internet and other interactive 
computer services, unfettered by Federal or State regulation.'' Section 
230 also finds that ``[t]he internet and other interactive computer 
services have flourished, to the benefit of all Americans, with a 
minimum of government regulation.'' As we discuss above, at the time 
the 1996 Act was enacted, the transmission component of enhanced 
services--namely, internet access--was subject to regulation under 
Title II of the Act. Thus, the regulatory status quo that ``presently 
exist[ed]'' and under which the internet and other interactive computer 
services ``ha[d]'' flourished at the time of section 230's enactment as 
part of the 1996 Act included Title II regulation of the transmission 
services used to access the internet. We are not persuaded by 
Commissioner Carr's suggestion that our rules are incompatible with 
section 230(c)(2), which is entitled ``Civil Liability'' and provides 
in relevant part that ``No provider or user of an interactive computer 
service shall be held liable on account of any action voluntarily taken 
in good faith to restrict access to or availability of material that 
the provider or user considers to be obscene, lewd, lascivious, filthy, 
excessively violent, harassing, or otherwise objectionable . . . .'' We 
take no position here on when, if ever, a BIAS provider's actions to 
discriminate against certain internet content, application, or services 
could be characterized as good-faith action to address 
``objectionable'' content within the meaning of section 230(c)(2). 
Moreover, section 230(c)(2)'s title and text indicate, that provision 
merely immunizes providers against civil liability, such as damages, 
for their content-moderation decisions. It does not purport to 
otherwise immunize BIAS providers from any regulatory obligations, and 
if a BIAS provider violates our rules, the rules may be validly 
enforced through other means--such as a writ of injunction under 
section 401(b), or potentially criminal sanctions under section 501. In 
addition, the Commission could issue a declaratory ruling identifying a 
violation of the conduct rules by a given provider, 47 CFR 1.2, with 
the potential to consider that determination in subsequent 
adjudications not involving civil liability--such as evaluating the 
public interest when granting or denying licenses or authorizations, or 
crafting policies governing eligibility for universal service funding.
    233. We also reject the contention of the RIF Order and certain 
commenters that narrow-purpose statutory provisions like sections 
230(f)(2) and 231 of the Act either settled the classification of BIAS 
or are even relevant to our telecommunications service classification. 
Section 230(f)(2) defines ``for purposes of this section'' an 
``interactive computer service'' to ``mean[ ] any information service, 
system, or access software provider that provides or enables computer 
access by multiple users to a computer server, including specifically a 
service or system that provides access to the internet.'' Likewise, 
section 231(e)(4) provides that ``for purposes of'' section 231--which 
was added a year after the enactment of the 1996 Act--`` `internet 
access service' means a service that enables users to access content, 
information, electronic mail, or other services offered over the 
internet, . . . [and] does not include telecommunications services.'' 
In a similar vein, NCTA seeks to invoke language in section 231 of the 
Act, stating that ``[n]othing in this section shall be construed to 
treat interactive computer services as common carriers or 
telecommunications carriers.'' But had Congress wanted those provisions 
to settle the classification of internet access service, it easily 
could have added those definitions--or others--to the definitions in 
section 3 of the Communications Act, and thereby made them generally 
applicable (as the 1996 Act did with respect to many other 
definitions). Thus, we agree with the D.C. Circuit in USTA that it is 
``unlikely that Congress would attempt to settle the regulatory status 
of BIAS in such an oblique and indirect manner, especially given the 
opportunity to do so when it adopted'' the 1996 Act. And as we discuss 
above, that the internet access service prevalent at the time those 
provisions were enacted bears so little resemblance to the BIAS we 
classify in the Order reinforces our decision not to pull those 
definitions out of their statutory context and apply them to a 
fundamentally dissimilar service.
    234. We also reject arguments that the IIJA counsels against 
reclassification. USTelecom points out that through the IIJA ``Congress 
established numerous programs to promote digital equity'' including 
actions to foster ``deployment to unserved and underserved areas,'' to 
``provide[ ] a discount for broadband service to eligible households,'' 
``to establish three grants with the goal of ensuring that all people 
have the skills, technology, and capacity needed to participate in the 
digital economy,'' and

[[Page 45455]]

to ``facilitat[e] equal access to broadband, including by preventing 
and eliminating digital discrimination.'' USTelecom then asserts that 
``Congress's decision to address equal access directly--in the way that 
it chose--demonstrates that it did not intend for the Commission to 
attempt to address the issue through Title II reclassification of 
broadband.'' But such an argument proceeds from a mistaken assumption. 
First and foremost, as discussed above, the Act clearly grants the 
Commission authority and responsibility to classify services such as 
BIAS--the status of which remained unsettled by the unresolved 
challenges to the RIF Remand Order--where necessary to fulfill its 
statutory duties. And we classify BIAS as a telecommunications service 
because we conclude that represents the best reading of the Act. 
Second, even to the extent that we evaluate policy considerations as 
independently reinforcing our classification decision, we find 
USTelecom's argument unpersuasive. We see nothing in the text of the 
IIJA to indicate that the targeted efforts to address BIAS-related 
policy concerns taken up in the IIJA were intended to comprehensively 
address BIAS policy in any or all of the targeted policy areas to the 
exclusion of other existing statutory authorities. Indeed, at the time 
the IIJA was enacted in 2021, there were pending petitions for 
reconsideration and a pending petition for judicial review of the RIF 
Remand Order, and thus we cannot assume Congress would have reached a 
conclusion about what the ultimate classification of BIAS would be at 
the time of the IIJA's enactment.
    235. We conclude that a finding of market power is not a 
prerequisite to classifying a service as a telecommunications--and thus 
common carrier--service and are unpersuaded by arguments to the 
contrary. The Act is abundantly clear that common carrier regulation 
applies--at least absent forbearance--even in the case of services 
subject to competition. The 1996 Act is replete with examples of 
provisions making clear that Congress desired telecommunications 
carriers--which are treated as common carriers in their provision of 
telecommunications services--to be subject to competition. Indeed, one 
of the main goals of the 1996 Act was to foster competition amongst 
common carriers. For example, among other things:
     Section 10 of the Act directs the Commission to forbear 
from applying provisions of the Act or Commission rules to 
telecommunications carriers or telecommunications services if certain 
statutory criteria are met and provides that the public interest 
evaluations in section 10(a)(3) will be met if forbearance ``will 
promote competitive market conditions, including . . . competition 
among providers of telecommunications services.''
     Section 11 of the Act requires the Commission to 
biennially review its rules ``that apply to the operations or 
activities of any provider of telecommunications service'' and 
determine if any such rules are no longer necessary ``as the result of 
meaningful economic competition between providers of such service.''
     Section 251 of the Act provides for an array of 
requirements specifically designed to facilitate local competition for 
telecommunications services.
     Section 254(k) of the Act prohibits telecommunications 
carriers from ``us[ing] services that are not competitive to subsidize 
services that are subject to competition.''
     Section 271 of the Act predicated the BOCs' provision of 
long distance services on anticipated competition in local markets for 
telecommunications services, including through requirements designed to 
foster that competition.
    Even prior to the 1996 Act, it was apparent that common carrier 
regulation under the Communications Act was not tied to market power or 
similar considerations. For example, section 332(c)(1) provided that 
commercial mobile service providers ``shall, insofar as such person is 
so engaged, be treated as a common carrier,'' but authorized the 
Commission to designate certain Title II provisions as inapplicable if 
certain statutory criteria are met, including an analysis of whether 
such relief ``will enhance competition among providers of commercial 
mobile services.'' Likewise, the Supreme Court, in MCI, evaluated the 
Commission's pre-1996 Act efforts to grant relief from Title II 
requirements for common carriers that lacked market power, and 
ultimately rejected such efforts as beyond the Commission's authority 
under the Communications Act.
2. The Major-Questions Doctrine Poses No Obstacle to Recognizing BIAS 
as a Telecommunications Service
    236. We conclude that the major-questions doctrine--the notion that 
in certain extraordinary cases, a court will not lightly find that 
Congress has delegated authority to an agency--is no obstacle to our 
classification of BIAS as a telecommunications service. We also reject 
TechFreedom's assertion that our actions violate the non-delegation 
doctrine. The Supreme Court has repeatedly held that ``a statutory 
delegation is constitutional as long as Congress `lay[s] down by 
legislative act an intelligible principle to which the person or body 
authorized to [exercise the delegated authority] is directed to 
conform.' '' In other words, a statutory delegation is constitutional 
if Congress provides ``standards `sufficiently definite and precise to 
enable Congress, the courts, and the public to ascertain' whether 
Congress's guidance has been followed.'' The test is plainly satisfied 
here. The Act contains specific definitions of ``information service'' 
and ``telecommunications service,'' which enable courts to assess 
whether the Commission has properly classified BIAS under the Act. 
Similarly, the statute provides that the Commission may engage in 
regulatory forbearance only if it makes certain statutorily specified 
determinations. Thus, consistent with the Constitution, the Act sets 
forth intelligible principles to guide the Commission in exercising its 
delegated authority.
    237. To begin with, for several reasons, we do not think the major-
questions doctrine properly comes into play in this context at all. For 
one, we are simply following the best reading of the Communications 
Act, as demonstrated by the statute's plain text, structure, and 
historical context; there is no call for deference to an interpretation 
that is not the statute's most natural reading.
    238. Moreover, as the D.C. Circuit has recognized, the Supreme 
Court's Brand X decision establishes that the major-questions doctrine 
does not restrict our authority to determine the proper classification 
of BIAS. Brand X held that the Commission has the authority to 
determine the proper statutory classification of BIAS. If the major-
questions doctrine were an obstacle to reclassification here, then it 
also should have applied to the earlier reclassification in that case 
from Title II to Title I. After all, a decision to adopt a Title I 
classification would simply be the obverse of a decision to adopt a 
Title II classification, with the same economic and political stakes 
(but in the opposite direction). But, in reviewing the Cable Modem 
Declaratory Ruling in Brand X, the Supreme Court recognized and upheld 
the Commission's authority to determine the proper classification of 
BIAS without identifying any concern over whether that classification 
presents a major question. Indeed, the Court identified no major-
questions problem even though several parties expressly raised the 
issue. We are unpersuaded by suggestions that a deregulatory Title I 
classification would not be a major

[[Page 45456]]

question, yet a Title II classification would be. The Supreme Court has 
construed its earlier decision in MCI as a ``major questions'' case. 
And in MCI, the Court overturned a Commission order adopting a 
deregulatory interpretation of the Act, holding that the Commission's 
authority to ``modify'' certain tariff-filing requirements did not 
permit elimination of the tariff-filing requirement for nondominant 
carriers altogether. It is therefore apparent that the major-questions 
doctrine applies equally to agency actions that are regulatory or 
deregulatory. Thus, if the major-questions doctrine applies to an 
interpretation that BIAS is a Title II telecommunications service, then 
the doctrine equally would apply to an interpretation that BIAS is a 
Title I information service. We therefore find that the major-questions 
doctrine does not resolve this issue or place a thumb on the scale in 
favor of one interpretation over the other.
    239. We also do not think any inference can be drawn from 
Congress's failure to clarify the regulatory status of BIAS one way or 
the other. Commenters point out that several bills were introduced in 
Congress to specify that broadband should be regulated under Title II, 
but were not enacted. But other bills were introduced in Congress to 
specify that broadband must be regulated under Title I, and those bills 
also failed to pass. Numerous failed bills would have required that 
broadband ``shall be considered to be an information service.'' Another 
failed bill would have required that ``[t]he Commission may not impose 
regulations on broadband internet access service or any component 
thereof under title II.'' Three other failed bills proposed to overturn 
and preclude reenactment of the 2015 Open Internet Order's Title II 
classification and rules. And yet another bill proposed to classify 
broadband under a new Title VIII. This record of unenacted legislation 
on both sides reflects only indecision and inaction from Congress, not 
that Congress discernibly refused or rejected any particular approach. 
Failed legislation on both sides of this issue ``tell[s] us little if 
anything about'' Congress's views on the proper classification of 
broadband. The record of indecision and inaction from Congress on the 
classification of broadband, against the backdrop of the Commission's 
prior actions, readily distinguishes the situation here from that in 
FDA v. Brown & Williamson Tobacco Corp. There, the Food and Drug 
Administration (FDA) asserted jurisdiction to regulate tobacco products 
after having ``disclaimed the authority to [do so] . . . for more than 
eighty years,'' and ``Congress had repeatedly legislated against this 
background.'' By contrast, in the period since Congress enacted the 
1996 Act, the Commission's treatment of broadband service has wavered 
between Title II and Title I and remained unsettled. In the years soon 
after passage of the 1996 Act, the Commission classified DSL as 
including an offer of telecommunications service subject to Title II. 
In 2002, the Commission reversed course and classified cable broadband 
as a single integrated offering of information service subject only to 
Title I (although its legal status remained uncertain, with the Ninth 
Circuit initially overturning that classification, until the Supreme 
Court upheld it in 2005). From 2015 to 2018, the Commission regulated 
broadband as a Title II telecommunications service. And then in 2018, 
the Commission reverted to classifying broadband as a Title I 
information service. And even during much of the Title I era, the 
Commission repeatedly sought to enforce policies that closely resemble 
the open internet rules we adopt in the Order. The Commission ``never 
disclaimed any authority to regulate the internet or internet providers 
altogether, nor is there any similar history of congressional reliance 
on such a disclaimer.''
    240. Even if the major-questions doctrine were to come into play, 
we do not think it would ultimately apply to the actions we take here. 
To determine whether the major-questions doctrine applies, courts weigh 
several factors, including (1) ``the economic and political 
significance'' of the agency action, (2) whether the agency is 
``claim[ing] to discover in a long-extent statute an unheralded 
power,'' (3) whether the action falls within the agency's ``comparative 
expertise,'' and (4) whether Congress ``has consistently rejected'' 
similar efforts.
    241. We do not think the rules we adopt in the Order have the 
extraordinary economic and political effect required to implicate the 
major-questions doctrine. To be sure, we believe the rules we adopt in 
the Order will have substantial benefits for the American public. But 
not every regulatory action that has substantial effects is so 
momentous as to trigger the major-questions doctrine. BIAS providers 
have previously been regulated under Title II--including several years 
under the 2015 rules that were materially identical to those we adopt 
in the Order--yet the record does not show that our past Title II rules 
had any extraordinary negative impact on BIAS providers or the internet 
economy, which continued to flourish while those rules were in effect. 
Instead, commenters arguing that our actions in the Order cross the 
major-questions threshold appear to exaggerate the potential effect of 
the Order by focusing on the economic value of the internet economy as 
a whole or the total amount of capital that has been spent to construct 
the internet, rather than the effect of the specific actions we take 
here, or by relying on provisions that we have forborne from applying, 
or bare platitudes and ipse dixit. When considering economic effects, 
the Supreme Court has focused on the actual magnitude of a challenged 
action's effect on an industry, rather than just the size of the 
underlying industry. To the extent parties have pointed to attempts to 
isolate the effects of Title II or the 2015 rules, we agree with the 
Mozilla court that ``the Title II Order's effect on investment [is] 
subject to honest dispute'' and that the available studies are of only 
``quite modest probative value'' and ``could only be reliably adduced 
as evidence of the directionality of broadband investment, not `the 
absolute size of the change' attributable to the Title II Order,'' for 
the reasons we discuss below. The internet will continue to sustain its 
enormous economic and social value under our actions in the Order, just 
as it did under the 2015 Open Internet Order. And as with that Order, 
our broad forbearance from any particularly onerous requirements under 
Title II will significantly mitigate any economic impact on BIAS 
providers. As Justice Scalia observed in his dissent in Brand X, ``the 
Commission's statutory authority to forbear from imposing most Title II 
regulations'' ensures that the economic effect of a Title II 
classification is ``not a worry.''
    242. But even if the economic and political significance of our 
order met the first prong of the major-questions doctrine, the other 
factors militate against applying it here. In every other respect, the 
situation here is the antithesis of the Supreme Court's major-questions 
cases.
    243. To start, we are not ``claim[ing] to discover in a long-extant 
statute an unheralded power.'' There is nothing novel about the 
Commission's exercise of its classification power here. On the 
contrary, the Commission regularly classified services under the basic-
enhanced Computer II framework even before Congress adopted the 1996 
Act; Congress effectively codified that regulatory regime into the 1996 
Act under the telecommunications service

[[Page 45457]]

and information service definitions; the Commission has continued to 
regularly exercise that authority under the 1996 Act, including by 
classifying DSL service as including a Title II telecommunications 
service in 1998 and classifying all BIAS as a Title II 
telecommunications service in 2015; and the Supreme Court expressly 
upheld the Commission's authority to classify broadband service in 
Brand X. That is not some ``newfound power,'' but instead a power that 
the Commission has possessed and asserted all along. We also reject 
claims that our order would ``effect[ ] a `fundamental revision of the 
statute, changing it from [one sort of] scheme of . . . regulation' 
into an entirely different kind.'' That may have been true in MCI, 
which concerned a change from ``from a scheme of rate regulation in 
long-distance common-carrier communications to a scheme of rate 
regulation only where effective competition does not exist.'' But under 
the forbearance authority that Congress added to the Communications Act 
in response to that case, the Order specifically forbears from any 
tariff-filing requirements or rate regulation, ensuring that our 
classification decision will not alter those fundamental aspects of the 
regulatory scheme. Our exercise of that authority in the Order thus 
comes as no surprise. And given the important role that a service's 
classification plays under numerous provisions of the Act, as well as 
the persistent focus on that issue in numerous classification decisions 
over the years, the classification power cannot be dismissed as some 
mere `` `ancillary provision[ ]' of the Act . . . that was designed to 
function as a gap filler and had rarely been used in the preceding 
decades.''
    244. On top of that, regulating communications services and 
determining the proper regulatory classification of broadband falls 
squarely within the Commission's wheelhouse. Regulating communications 
networks ``is what [the Commission] does,'' consistent with our 
statutory mandate to ``regulat[e] interstate and foreign commerce in 
communications by wire and radio so as to make available . . . a rapid, 
efficient, Nation-wide and world-wide wire and radio communication 
service with adequate facilities at reasonable charges.'' No one should 
be surprised to see the Commission classifying and regulating 
communications services. Our action in the Order is thus nothing like 
the Centers for Disease Control and Prevention seeking to regulate 
evictions, the Occupational Safety and Health Administration seeking to 
regulate non-occupational public health hazards, the Internal Revenue 
Service addressing healthcare policy, or the Attorney General making 
medical judgments. In contrast to those cases, the Order falls directly 
within the agency's core statutory responsibility.
    245. The regulatory issues we address in the Order also fall 
squarely within the Commission's technical and policy expertise. The 
issues here ``turn[ ] . . . on the factual particulars of how internet 
technology works and how it is provided,'' and they ``involve a 
`subject matter [that] is technical, complex, and dynamic,' '' which 
the agency is well positioned ``to address'' through ``its expert 
policy judgment.'' In light of that relevant expertise, it is entirely 
appropriate and unsurprising that Congress would ``leave[ ] federal 
telecommunications policy in this technical and complex area to be set 
by the Commission.''
    246. For the reasons explained above, we also do not believe that, 
on the facts here, anything can be inferred from Congress's failure to 
clarify the regulatory status of broadband one way or the other. 
Against a pre-1996 Act backdrop in which the Commission regularly 
classified emerging services as either basic services (now known as 
telecommunications services) or enhanced services (now known as 
information services), Congress essentially adopted that framework in 
the 1996 Act. But Congress chose not to directly specify which 
classification applies to broadband, which the Supreme Court understood 
in Brand X as ``leav[ing] it to the Commission to resolve in the first 
instance'' in the exercise of its expert technical and policy judgment. 
In the years since Brand X, Congress has failed to adopt several bills 
that would require broadband to be regulated under Title I and has also 
failed to adopt several bills that would instead provide for broadband 
to be regulated under Title II. Rather than casting any doubt on our 
regulatory authority, we think this recent stalemate leaves in place 
the prior understanding articulated in Brand X--i.e., that the 
Communications Act ``leaves federal telecommunications policy in this 
technical and complex area to be set by the Commission.''
    247. The situation here again stands in stark contrast to Brown & 
Williamson. In that case, the Court ``d[id] not rely on Congress' 
failure to act'' as casting doubt on agency action, but instead on 
affirmative action by Congress that appeared to chart an incompatible 
course. There is no comparable record of incompatible action by 
Congress here. Here, the only affirmative action Congress has taken on 
broadband regulation in recent years was a 2017 resolution to 
invalidate broadband privacy rules promulgated by the Commission under 
section 222 of the Act. That resolution overturned only a specific set 
of privacy rules while leaving in place the underlying Title II 
classification and other rules that were then in effect, and so casts 
no doubt on the actions we take in the Order. We disagree with 
USTelecom's contention that Congress's authorization of the BEAD grant 
program somehow bears on the classification of BIAS under the 
Communications Act. USTelecom observes that, in authorizing that 
program, section 60102(h)(5)(D) of the IIJA states that ``[n]othing in 
this title''--meaning Title I of Division F of the IIJA--``may be 
construed to authorize the Assistant Secretary [of Commerce] or the 
National Telecommunications and Information Administration to regulate 
the rates charged for broadband service.'' But a disclaimer that 
Congress was not authorizing the Department of Commerce or its 
subagency to regulate broadband rates as part of a subsidy program that 
exists outside the Communications Act does not speak at all to how the 
Commission may or should administer the Communications Act. And even if 
the IIJA had adopted a broader prohibition on any rate regulation under 
the Communications Act--something that the Order does not impose, and 
indeed affirmatively forbears from--that would not speak to other forms 
of common-carriage treatment or to the rules we adopt in the Order 
prohibiting blocking, throttling, and paid prioritization. On its face, 
the IIJA is entirely agnostic about how BIAS should be classified under 
the Communications Act and whether the Commission should have the power 
to impose the rules we adopt in the Order. If Congress wanted to 
prohibit Title II regulation of broadband in the IIJA or to otherwise 
restrict the Commission's authority, it surely could have done so, but 
USTelecom errs in trying to read into the IIJA an unstated prohibition 
that Congress nowhere adopted.
    248. Finally, in the event that (despite all the considerations 
above) the major-questions doctrine does apply here, we nonetheless 
think our authority to classify and regulate broadband is sufficiently 
clear under the Communications Act. We agree with the D.C. Circuit that 
the Supreme Court already held as much in Brand X, in which ``the 
Supreme Court expressly recognized that Congress . . . had

[[Page 45458]]

delegated to the Commission the power to regulate broadband service.'' 
Indeed, in a subsequent major-questions case, the Court expressly 
pointed to Brand X as a case finding that the agency's ``authority is 
clear'' based on ``the language of the statute itself.'' That 
conclusion from the statute was clearly correct. The Communications Act 
is full of provisions that depend on whether a service is classified as 
a telecommunications service or an information service. The Commission 
cannot administer those provisions without first deciding how a service 
should be classified. To that end, section 4(i) of the Act expressly 
empowers the Commission to ``perform any and all acts, make such rules 
and regulations, and issue such orders . . . as may be necessary in the 
execution of its functions.'' Likewise, section 201(b) empowers the 
Commission to ``prescribe such rules and regulations as may be 
necessary in the public interest to carry out the provisions of'' the 
Act. And section 303(r) again empowers the Commission to ``[m]ake such 
rules and regulations and prescribe such restrictions and conditions . 
. . as may be necessary to carry out the provisions of'' the Act. The 
grant of authority required under the major-questions doctrine ``may 
come from specific words in the statute, but context can also do the 
trick,'' including ``[s]urrounding circumstances, whether contained 
within the statutory scheme or external to it.'' Here, as the Supreme 
Court has opined in numerous Commission-related cases, ``[i]t suffices 
. . . [that] Congress has unambiguously vested the FCC with general 
authority to administer the Communications Act through rulemaking and 
adjudication,'' and the Commission necessarily must be able to assess 
the proper classification of BIAS ``in the exercise of that 
authority.''

G. Preemption of State and Local Regulation of Broadband Service

    249. Consistent with the Commission's approach in the 2015 Open 
Internet Order, we will exercise our authority to preempt any State or 
local measures that interfere or are incompatible with the Federal 
regulatory framework we establish in the Order. And as in the 2015 Open 
Internet Order, we will proceed incrementally by considering such 
measures on a case-by-case basis as they arise ``in light of the fact 
specific nature of particular preemption inquiries.'' We are not 
persuaded to depart from our description of the basic preemption 
framework here, particularly given our approach of generally deferring 
specific preemption analyses to future case-by-case assessments where 
the relevant issues can be fully vetted as warranted.
    250. Commenters broadly agree that Title II gives the Commission 
authority to preempt State or local requirements that interfere with 
our exercise of Federal regulatory authority over interstate 
communications. Under a doctrine known as the impossibility exception 
to State jurisdiction, the Commission may, in the exercise of its 
preeminent Federal regulatory authority over interstate communications, 
preempt State law when (1) it is impossible or impracticable to 
regulate the intrastate use of a communications service without 
affecting interstate communications, and (2) State regulation would 
interfere with the Commission's exercise of its authority to regulate 
interstate communications. General principles of conflict preemption 
also lead to the same conclusion. ``Under ordinary conflict pre-emption 
principles[,] a state law that `stands as an obstacle to the 
accomplishment and execution of the full purposes and objectives' of a 
federal law is preempted.'' In Geier v. Am. Honda Motor Co., for 
example, the Court ``found that [a] state law stood as an obstacle to 
the accomplishment of a significant federal regulatory objective'' 
embodied in Department of Transportation regulations and was therefore 
preempted.
    251. The D.C. Circuit held in Mozilla that the Commission could not 
invoke the impossibility exception to preempt State law after it 
classified BIAS as an information service under Title I. But that was 
because ``[c]lassifying broadband as an information service . . . 
placed broadband outside of [the Commission's] Title II jurisdiction,'' 
and ``in any area where the Commission lacks the authority to regulate, 
it equally lacks the power to preempt state law.'' Because the Order 
restores and rests on the broad regulatory authority conferred on the 
Commission by Title II, Mozilla does not cast any doubt on the 
Commission's power, under the impossibility exception as well as 
ordinary principles of conflict preemption, to preempt State law when 
exercising--or when forbearing from--our affirmative regulatory 
authority over broadband. We reiterate, as we have in the past, that 
the reclassification decision made herein provides no justification for 
a State or local franchising authority to require a party with a 
franchise to operate a cable system under Title VI of the Act, to 
obtain an additional or modified franchise in connection with the 
provision of BIAS, or to pay any new franchise fees in connection with 
the provision of such services.
    252. We decline requests to categorically preempt all State or 
local regulation affecting BIAS in the absence of any specific 
determination that such regulation interferes with our exercise of 
Federal regulatory authority. Because we think preemption decisions 
will, at least in general, best be reached on a record specific to 
whether and how a State or local regulation conflicts with our Federal 
requirements, we also decline at this time to preempt specific State or 
local regulations insofar as we lack a specific and robust record in 
this proceeding. The Act establishes a dual Federal-State regulatory 
system in which the Federal government and the states may exercise 
concurrent regulatory authority over communications networks. While the 
Commission has occasionally described the internet as 
``jurisdictionally interstate'' or ``predominantly interstate,'' we 
cannot find it to be exclusively interstate. BIAS providers operate in 
and significantly affect local markets, and there are intrastate 
aspects of BIAS providers' operations that could reasonably be handled 
differently in different jurisdictions. For example, different laws 
might apply to customer relationships and billing practices depending 
on a customer's billing or service address. The Commission has 
previously stated that ``whenever possible,'' preemption should be 
applied ``narrow[ly]'' in order ``to accommodate differing state views 
while preserving federal goals.'' And as the Commission recognized even 
in the RIF Order, it would be inappropriate to ``disturb or displace 
the states' traditional role in generally policing such matters as 
fraud, taxation, and general commercial dealings.'' Where State or 
local laws do unduly frustrate or interfere with interstate 
communications, however, we have ample authority to address and preempt 
those laws on a case-by-case basis as they arise. We will not hesitate 
to exercise that authority.
    253. California's Internet Consumer Protection and Network 
Neutrality Act of 2018, also known as SB-822, appears largely to mirror 
or parallel our Federal rules. Thus we see no reason at this time to 
preempt it. The law's legislative history states that it was 
specifically designed to ``codify portions of the [then]-rescinded 
Federal Communications Commission rules'' by ``recast[ing] and 
implement[ing] the `bright line rules' . . . established in the 2015 
Open Internet Order.'' To that end, the California law makes it 
``unlawful'' for any BIAS provider to engage in

[[Page 45459]]

``blocking,'' throttling (i.e., ``[i]mpairing or degrading'' internet 
traffic), or ``paid prioritization.'' The law also prohibits BIAS 
providers from ``unreasonably interfering'' with or ``unreasonably 
disadvantaging'' internet content or services, similar to our general 
conduct rule. And the law includes a disclosure requirement that 
closely resembles our transparency rule.
    254. On its face, the California law generally tracks the Federal 
rules we restore in the Order, including the bright-line rules 
prohibiting blocking, throttling, and paid-prioritization, as well as 
the general conduct rule and transparency disclosures. A State law that 
requires regulated parties to comply with the same requirements that 
already apply under Federal law is by definition unlikely to interfere 
with or frustrate those Federal rules.
    255. Nor do we see any reason at this time to preempt California 
from independently enforcing the requirements imposed by our rules or 
by the state's parallel rules through appropriate State enforcement 
mechanisms. On the contrary, we think State enforcement generally 
supports our regulatory efforts by dedicating additional resources to 
monitoring and enforcement, especially at the local level, and thereby 
ensuring greater compliance with our requirements. However, should 
California State enforcement authorities or State courts seek to 
interpret or enforce these requirements in a manner inconsistent with 
how we intend our rules to apply, we will consider whether 
appropriately tailored preemption is needed at that time.
    256. Some parties suggest that the California law might go further 
than our Federal requirements with respect to interconnection or zero-
rating. Notably, most of these commenters express support for these 
requirements and urge against preempting them. We are not persuaded on 
the record currently before us that the California law is incompatible 
with the Federal rules we adopt in the Order with respect to either 
issue. As to the former, California prohibits BIAS providers from 
requiring interconnection agreements ``that have the purpose or effect 
of evading the other prohibitions'' by blocking, throttling, or 
charging for traffic at the interconnection point. We have likewise 
stated in the Order that BIAS providers may not engage in 
interconnection practices that circumvent the prohibitions contained in 
the open internet rules. As to the latter, California restricts zero-
rating when applied discriminatorily to only a subset of ``Internet 
content, applications, services, or devices in a category'' or when 
performed ``in exchange for consideration, monetary or otherwise, from 
a third party.'' We have likewise explained in the Order that 
sponsored-data programs--where a BIAS provider zero rates an edge 
product in exchange for consideration (monetary or otherwise) from a 
third party or where a BIAS provider favors an affiliate's edge 
products--raise concerns under the general conduct standard. The 
California Attorney General represents that these provisions of 
California law ``are consistent with, and not in conflict with, the 
Commission's proposal'' that we adopt in the Order, because the 
Commission has ``included protections against interconnection 
circumvention'' and stated that we ``may take action against zero-
rating practices under the general conduct provision on a case-by-case 
basis.'' Nothing in the record gives us any reason to doubt that 
representation. The California law has been in effect since early 2022, 
yet there is no record evidence that these provisions have unduly 
burdened or interfered with interstate communications service. And in 
contrast to our treatment of rate regulation, from which we have 
affirmatively forborne, we have not determined that regulation of zero-
rating and interconnection is detrimental, leaving room for states to 
experiment and explore their own approaches within the bounds of our 
overarching Federal framework.
    257. We caution, however, that we stand ready to revisit these 
determinations if evidence arises that State policies are creating 
burdens on interstate communications that interfere or are incompatible 
with the Federal regulatory framework we have established. Our 
determination here simply reflects that no convincing evidence has been 
presented to us in this proceeding.
    258. A group of California Independent Small LECs ask us to preempt 
several CPUC decisions regulating rates for intrastate telephone 
service, insofar as those telephone service rates take into account a 
company's broadband revenues or those of its affiliates. We find that 
those decisions are outside the scope of this proceeding, which 
concerns the regulatory framework that applies to BIAS, not rates for 
or regulation of traditional telephone service. The California 
Independent Small LECs or other parties are free to raise this issue in 
an appropriate proceeding, but we express no views on it here.
    259. Some commenters ask us to address more broadly the extent of 
State authority to adopt broadband affordability programs. The comments 
received in this proceeding do not contain a focused and robust record 
or discussion concerning any particular State broadband affordability 
program, so we decline to address any particular program here. 
Nevertheless, we find that states have a critical role to play in 
promoting broadband affordability and ensuring connectivity for low-
income consumers. The BEAD grant program established by the IIJA, for 
example, requires State BEAD programs to ensure that ISPs offer a 
``low-cost broadband service option'' for eligible subscribers. We also 
clarify that the mere existence of a State affordability program is not 
rate regulation.

H. Impact of Reclassification on Investment

    260. Consistent with our tentative conclusion in the 2023 Open 
Internet NPRM, and contrary to the conclusion reached in the RIF Order, 
we find arguments that the reclassification of BIAS would lead to a 
substantial adverse impact on BIAS investment to be unsubstantiated. In 
the RIF Order, the Commission's primary policy justification for 
reclassifying BIAS as a Title I information service was its conclusion 
regarding the alleged harm to investment by Title II classification. 
The RIF Order also advanced two additional policy rationales for 
reclassifying BIAS under Title I: (1) a claim that there were no 
demonstrated harms and that BIAS providers would be incentivized to 
maintain internet openness; and (2) a claim that existing consumer 
protection and competition laws were sufficient to protect an open 
internet. As we discuss further below, we also disagree with the RIF 
Order's analysis regarding these policy justifications. However, the 
RIF Order failed to consider the evidence to the contrary, including 
the 2015 Open Internet Order's evidence that investment in mobile voice 
and DSL thrived during the period in which they were regulated as Title 
II services. As the record in this proceeding clearly shows, the impact 
of reclassification on BIAS investment is uncertain. This finding 
comports with the literature on open internet regulations, the 
available empirical evidence, and the literature on regulation more 
broadly.
    261. Commenters disagree as to whether reclassification of BIAS as 
a Title II service will discourage investment in broadband 
infrastructure or the internet generally. Several commenters contend 
that the current classification of BIAS as a Title I information 
service fosters investment,

[[Page 45460]]

claim that investment increased following the RIF Order, and raise the 
concern that reclassification of BIAS under Title II will increase 
regulatory burdens and uncertainty, leading to a reduction in 
investment and innovation. AT&T argues that investment decisions depend 
on long-run: (1) expected costs (including the costs of regulatory 
compliance), (2) expected revenues, and (3) the degree of uncertainty 
about costs and revenues; and it claims that Title II regulation would 
worsen all three. WISPA contends that regulatory compliance costs will 
disproportionately impact small service providers that lack the 
resources to handle the new compliance obligations. Several commenters 
claim that Title II classification, particularly the application of a 
general conduct rule, would increase uncertainty and therefore chill 
investment and innovation. Commenters also claim that application of 
section 214 to BIAS would create a regulatory burden and reduce network 
investment and innovation. Finally, many commenters claim that applying 
public-utility style regulation to the internet would result in high 
prices and chronic underinvestment.
    262. Other commenters argue that Title II reclassification would 
not reduce investment or innovation, and that there is no evidence that 
the 2015 Open Internet Order reduced BIAS investment or that investment 
increased following the 2017 RIF Order. Some of these commenters offer 
evidence that in fact the opposite occurred: BIAS deployment and 
investment increased following the 2015 Open Internet Order and 
declined following the 2017 RIF Order. The California Independent Small 
LECs argue that adopting Title II with strong forbearance, as we do 
here, would increase investment incentives by reducing uncertainty due 
to our rules preempting potentially different regulatory regimes within 
each state.
    263. We disagree with those commenters that argue our application 
of Title II with broad forbearance would reduce investment incentives 
or innovation. Regulation is but one of several factors that drive 
investment and innovation in the telecommunications and digital-media 
markets. Given the varying factors that underlie BIAS providers' 
investment decisions, we are not persuaded by CTIA and NCTA's cursory 
assertions that our classification decision would upset their 
investment-backed reliance interests. Regulation interacts with demand 
conditions, innovation opportunities created by technological advances, 
and the competitive intensity of markets. Appropriate regulation is 
often required to create market conditions that support infrastructure 
investment, as regulation can enhance competition, mitigate transaction 
costs between market players, and otherwise reduce market uncertainty, 
thus boosting investment and innovation. We find that the approach we 
take in the Order will foster a more competitive broadband marketplace, 
increase overall regulatory certainty, and provide a more level playing 
field for all market participants. We acknowledge that regulation 
generally, and open internet regulations in particular, can affect 
market participants differently. On balance, however, we conclude that 
our approach is unlikely to reduce, and would likely promote, overall 
investment and innovation in the internet ecosystem.
    264. The RIF Order and at least one commenter argue that regulation 
in general, and the prospect of future price regulation in particular, 
which we clearly disclaim, will chill BIAS provider investment. 
However, research on the relationship between regulation and investment 
shows that the impact of regulation is more nuanced. For example, the 
findings of empirical research on how Commission regulations concerning 
the provision and pricing of network elements affected investment 
reaches different conclusions with respect to incumbent firms and 
competitors. To facilitate new entry into the local exchange market, 
the Telecommunications Act of 1996 required an ILEC to, among other 
things, offer new competitive carriers interconnection at any 
technically feasible point in the ILEC's network, access to unbundled 
network elements (UNEs) on a rate-regulated basis, and make retail 
services available for resale at regulated wholesale rates. Researchers 
have reached different conclusions regarding how the Commission's 
implementation of this requirement has affected ILEC and CLEC 
investment. Thus, a generic claim that regulation will chill investment 
cannot be sustained. Furthermore, we emphasize that we do not consider 
the effect of regulation solely on investment in broadband 
infrastructure--whether positive or negative. Rather, we assess the 
overall effect of regulation on consumer welfare, evaluating changes in 
broadband investment along with effects on the prices and quality of 
broadband access and edge services, and on edge provider investment and 
innovation.
    265. We find the comparison made by certain commenters between 
Title II classification coupled with open internet rules and public-
utility regulation to be inapt for several reasons. First, unlike 
utilities such as water, electricity, and gas, BIAS is a two-sided 
platform with BIAS subscribers on one side of the market and edge 
providers on the other. According to economist Mark Rysman, ``a two-
sided market is defined as one in which: (1) two sets of agents 
interact through an intermediary or platform, and (2) the decisions of 
each set of agents affects the outcomes of the other set of agents . . 
. [because] there is some kind of interdependence or externality 
between groups of agents that the intermediary serves.'' Rysman's 
definition aptly describes the BIAS virtuous cycle between consumer 
demand and edge provider innovation. Consumers value BIAS more as the 
diversity and quality of valuable edge services increase, and edge 
providers see value in investing and innovating as the breadth and 
depth of consumer demand increases. We note that Rysman specifically 
lists ``internet . . . markets'' under his examples. In contrast, in 
water and traditional gas and electricity markets, the value to the 
consumer of having access to the utility does not materially increase 
with the number of suppliers through an interdependency, and even 
modern energy markets only exhibit limited aspects of multisided 
markets. Therefore, the type of regulation required and the effects of 
those regulations will necessarily be different for BIAS than for such 
utilities. Second, and most importantly, the rules we now adopt are 
carefully tailored to avoid the potential issues that commenters claim 
are problematic in the regulations of utilities. In particular, unlike 
the range of utility-style regulations that were applied to monopoly 
telephone service under Title II, including rate regulation, we forbear 
from many of these provisions and do not adopt any rate regulation, 
which is a hallmark of utility regulation. The Commission has long 
recognized that regulating rates is not its preferred approach, and 
therefore has spent decades promoting competition in the market rather 
than relying on rate regulation. The approach we adopt in this 
proceeding is consistent with this longstanding policy objective.
    266. Economics literature shows that open internet provisions may 
increase investment and innovation, and may have welfare-enhancing 
effects. Contrary to BIAS provider claims that open internet provisions 
would diminish their investment incentives, some economics literature 
shows that allowing BIAS providers to sell prioritized access, for 
instance, can

[[Page 45461]]

actually lower investment incentives. For example, Professors Jay Pil 
Choi and Byung-Cheol Kim show under their assumptions that, if paid 
prioritization is allowed, BIAS providers have an incentive to reduce 
investment because expanding broadband capacity would lower the price 
that they can charge for priority access. In addition, the authors find 
that content provider investment incentives are also lower absent 
neutrality regulation due to BIAS providers potentially expropriating 
the benefits of content provider investment by charging for access to 
their customers. Another paper by Professors Nicholas Economides and 
Benjamin Hermalin finds that prohibiting BIAS providers from charging 
for priority access unambiguously reduces BIAS provider investment in 
their model. However, the study's finding on the overall effect of net 
neutrality regulation on social welfare is still ambiguous because 
social welfare is the sum of consumer welfare and producer surplus, 
including any surplus that accrues to edge providers.
    267. Given that economics literature supports a conclusion that the 
effects of applying open internet provisions may not be harmful, and 
can actually be beneficial to BIAS investment incentives, the RIF Order 
and opponents of reclassification in this proceeding cite studies that 
claim to show there was a decline in investment following the 
reclassification of BIAS to Title II in the United States, or after 
other countries implemented similar regulations. We find the evidence 
presented to be unpersuasive for the following reasons.
    268. First, as the RIF Order correctly recognized, network 
infrastructure is a long-term irreversible investment that often 
requires years of planning, preparation, and approvals before 
construction can begin. The RIF Order then proceeds to suggest, 
however, that there is a causal link between the adoption of the 2015 
Open Internet Order and declines in broad measures of BIAS provider 
investment that occurred in the same year that Order was adopted, 
noting that this was the first year of decline since 2009. The RIF 
Order goes on to review studies that compare BIAS provider investment 
before and after adoption of the 2015 Open Internet Order and suggests 
that the brief two-year reclassification of BIAS under Title II 
resulted in a decline in BIAS provider investment of up to 5.6% between 
2014 and 2016. Given the substantial planning, preparation and 
permitting required to make most large-scale capital investments in 
broadband networks, it is implausible that the 2015 Open Internet Order 
would have resulted in such an immediate and substantial decline in 
BIAS provider investment. Such a finding is also inconsistent with the 
reaction of investors to Title II reclassification, the findings of 
investment analysts, multiple statements made by company executives to 
investors following Title II reclassification, and common sense. An 
``event study'' analysis that examined the effect of the Title II 
decision on ISP and edge provider stock prices found that the decision 
had almost no impact, except for a very short-term decline in the stock 
prices of a few cable ISPs. And Sprint's Chief Technology officer 
stated that Sprint ``does not believe that a light touch application of 
Title II, including appropriate forbearance, would harm the continued 
investment in, and deployment of, mobile broadband services.'' In 
short, a proper evaluation of the investment effects of Title II 
reclassification, or open internet rules more generally, would require 
a longer time period in order to properly evaluate any potential 
effects on investment.
    269. Second, as the RIF Order also correctly recognized, many of 
the studies that it cites and evidence it presents did not account for 
other factors that likely have a much larger impact on investment 
decisions than the classification of BIAS. The RIF Order notes that 
``[t]hese types of comparisons can only be regarded as suggestive, 
since they fail to control for other factors that may affect investment 
(such as technological change, the overall state of the economy, and 
the fact that large capital investments often occur in discrete chunks 
rather than being spaced evenly over time), and companies may take 
several years to adjust their investment plans.'' These include the 
broader economic conditions, capacity constraints, increasing demand 
for broadband, technology changes (such as the transition from 3G to 4G 
and then to 5G networks), and BIAS providers' general business 
development decisions. Commenters in this proceeding point to the 
recent increase above trend in aggregate broadband capital expenditures 
as evidence that a ``light touch'' regulatory approach promotes 
broadband investment. However, such claims do not adjust for 
macroeconomic factors such as inflation, new technologies like 5G New 
Radio (NR), and myriad other factors that likely explain most if not 
all of the observed increases in investment since the RIF Order. We 
also note that following the release of the RIF Order, major mobile 
BIAS providers began investing in 5G NR technology, and this increase 
in investment would have occurred even absent the adoption of the RIF 
Order. In his dissent, Commissioner Carr points to a decline in 
wireless investment in 2016 and 2017 as evidence that the 2015 Open 
Internet Order caused wireless investment to decline. However, these 
two years are the period when wireless carriers had mostly concluded 
building their 4G networks. And the subsequent increase in wireless 
investment was due to carriers beginning to deploy 5G in 2018. Thus, 
after accounting for all relevant factors, the data Commissioner Carr 
cites does not undercut our investment analysis.
    270. Third, it is widely known in statistics that correlation does 
not imply causation. In the broadest sense, correlation measures the 
degree to which two random variables are associated with one another, 
and tests of correlation measure the strength of such a relationship. 
However, just because two variables--e.g., Title II reclassification 
and changes in investment--are observed to occur together, does not 
imply that one variable (reclassification) caused the other (observed 
changes in investment). For example, ice cream sales and violent crime 
rates tend to exhibit a strong positive association. However, it is not 
the case that ice cream sales cause crime, or that higher crime causes 
increased ice cream sales, but rather that a third variable, 
temperature, affects both. Not adjusting for average daily temperature 
could lead a researcher to draw an incorrect conclusion. To determine 
whether Title II reclassification caused the change in investment, we 
would need to determine what the level of investment would have been if 
Title II reclassification had not been adopted.
    271. The ``gold standard'' in empirical research for determining 
what would have happened is the randomization of research subjects into 
treatment and control groups, such as is commonly done in drug and 
other medical trials. In a randomized clinical trial, the outcomes of 
the control group that did not receive a treatment serve as the 
counterfactual for measuring the effect of a treatment that is given to 
the other group (the treatment group). However, in many real-world 
scenarios, such as the evaluation of the effect of open internet 
regulations, it is obviously not possible to randomize companies into 
treatment and control groups to determine investment effects. For this 
reason, there are a number of ``quasi-experimental'' empirical methods 
that have been developed in statistics that attempt to use 
observational data in a

[[Page 45462]]

manner that mimics a randomized experiment. Some of the statistical 
techniques used to perform such an analysis are fixed effects, 
instrumental variables (IV), differences-in-differences, and matching 
estimators.
    272. Only a few studies cited in the present record and in the RIF 
Order record attempt to perform any type of rigorous analysis of the 
effects on investment of open internet regulations or Title II 
reclassification with forbearance. As for those, we find, as we discuss 
below, that, in all cases, the results of these studies are 
inconclusive due to methodological issues. As an initial matter, no 
study in the record attempts to measure changes in edge provider 
investment under Title II reclassification, so no study can make claims 
about the effect of reclassification on the relevant investment 
variable of interest from a policy perspective, which is total 
investment in the internet ecosystem. Further, even if total investment 
in the internet ecosystem were shown to be lower, that would not be 
determinative of whether reclassification of BIAS under Title II with 
forbearance is socially beneficial. To make this determination, changes 
in social welfare, notably accounting for consumer benefits, would need 
to be examined. There is no empirical study in the record that attempts 
to measure such changes in social welfare, and as noted above, the 
theoretical literature is ambiguous in terms of whether open internet 
regulations would raise or lower social welfare.
    273. One empirical study cited prominently in the record and in the 
RIF Order uses a Differences-in-Differences (DiD) estimator on 
aggregate investment data by industry from the Bureau of Economic 
Analysis (BEA) to conclude that the 2010 announcement by Chairman 
Genachowski that the Commission was considering reclassifying BIAS 
under Title II raised uncertainty and reduced BIAS provider network 
investment on average by about 20% from 2011 to 2016. We find several 
other issues with this paper that lead us to give it no probative value 
in this proceeding. ITIF criticizes our dismissal of this study, but it 
does nothing to address the fundamental concerns with the study. ITIF 
also fails to provide support for its contention that the Commission 
should only reclassify BIAS as a Title II telecommunications service if 
there is evidence doing so will enhance broadband investment. In any 
event, we show below that the benefits of reclassification will 
outweigh the costs.
    274. The study conducts a DiD analysis by choosing five other 
industries that the author claims will have comparable trends in 
investment to the ``Broadcasting and Telecommunications'' industry that 
serves as the treatment group for purposes of assessing the impact of 
Title II reclassification on investment. The BEA industry 
classifications that the author chose as comparable to 
telecommunications are: wholesale trade; transportation and 
warehousing; machinery manufacturing; computer and electronics 
products; and plastics and rubber products. The BEA series 
identification numbers for the industries used are ``i3n51301es00'' for 
telecommunications, ``i3n42001es00'' for wholesale trade, 
``i3n48001es00'' transportation and warehousing, ``i3n33301es00'' for 
machinery manufacturing, ``i3n33401es00'' for computer and electronics 
products, and ``i3n32601es00'' for plastics and rubber products. It is 
not clear why this diverse set of industries with very different 
technology and productivity shocks would be an appropriate control 
group for telecommunications. Visual inspection comparing the pre-2010 
(pre-treatment) investment trends of the control industries with the 
trends in telecommunications and broadcasting investment confirm that 
the controls are inappropriately chosen. Prior to the 2010 announcement 
of potential Title II reclassification, there are sharp divergences in 
the investment trends between the two groups, which implies that the 
``parallel trends'' assumption of the DiD estimator may be violated and 
that biased estimates will be produced as a result. This study is the 
published version of a 2017 working paper that many commenters cite in 
the record. Two other papers by the same author present similar 
evidence, the latter of which, George Ford, Investment in the Virtuous 
Circle, uses USTelecom investment data for its measure of 
telecommunications investment and BEA data for its measure of 
investment in other industries, which may be problematic given that the 
two data sources may not be comparable. In addition, staff was unable 
to replicate this paper due to the author's not describing the twenty 
industries that were used in the control group. In fact, over 60% of 
the growth in investment in the control group between the pre-treatment 
and treatment periods is being driven in this study by the inclusion of 
investment in the transportation and warehousing industry. Investment 
in transportation and warehousing rose dramatically during the post-
2010 time period due to the boom in e-commerce that occurred. According 
to Census Bureau data, e-commerce sales increased by over 120 percent 
from Q4 2009 to Q4 2016. However, investment is forward-looking, and 
this retail sales data does not capture expected future sales. As one 
measure of forward-looking expectations for the e-commerce sales that 
drove investment in this industry, the stock price of Amazon increased 
by more than 400% over this same period. This trend makes this industry 
a poor choice for predicting what the trend in telecommunications 
investment would have been absent the announcement of the potential for 
BIAS to be reclassified as a Title II service. A more appropriate 
method to choose the control group industries to avoid these problems 
is to choose a weighted combination of the potential controls where the 
weights are chosen to minimize the pre-treatment differences between 
the treatment group and the control group, but this procedure was not 
followed.
    275. The aggregate measure of investment used by the author as the 
primary variable of interest is also too broad to provide meaningful 
estimates, both in terms of the business entities and types of 
investments included in the measure. There are currently 2,201 BIAS 
providers in the United States that would be affected by Title II 
reclassification, but the BEA collects investment data from nearly 
125,000 business entities in the telecommunications, broadcasting, 
motion picture, and video production industries when calculating their 
``Broadcasting and Telecommunications'' investment data. Title II 
reclassification would therefore be expected to have little direct 
effect on most of the businesses reported in the author's measure of 
broadband investment. Furthermore, investments captured within this 
broad measure would include investments in buildings, trucks, office 
equipment, software, and other investment categories that likely would 
be unaffected by Title II reclassification. A proper analysis would 
focus on discretionary investments by BIAS providers that would be 
expected to actually be impacted by reclassification.
    276. Finally, the BEA data used by the author has been 
substantially revised since this study was published and the corrected 
data undercut the conclusion that open internet regulations led to a 
decline in telecommunications investment. The Census Bureau conducts an 
Economic Census every five years that forms the basis of the investment 
data published by the BEA

[[Page 45463]]

and used by the author in this study. In the intervening years, the BEA 
estimates investment within each industry and then revises these 
estimates when the actual investment data becomes available from the 
newly conducted Economic Census. Whereas the author found that 
telecommunications investment declined by 6.2% in real terms when 
comparing the 2004-2009 period to the 2011-2016 period in his data, the 
corrected data now available on the BEA website show that 
telecommunications real investment in fact rose 10.2% between these two 
periods. We replicated the author's regression analysis exactly based 
on this previous data and found, as he did, that real investment in 
telecommunications in the uncorrected data declined between the 2004-
2009 and 2011-2016 periods, which leads us to conclude that the change 
in the conclusion based on the revised data is due entirely to changes 
in the underlying data and not differences in model specification. The 
revised data also substantially affect the results of the DiD 
regression analysis performed by the author. When Commission staff re-
estimate his baseline regression model in Table 2 with the corrected 
data, rather than finding a statistically significant 22% decline in 
telecommunications investment as the author found, the corrected 
regression finds only a 6.2% decline relative to expectations based on 
the control group industries and this is not statistically significant. 
If the inappropriate ``transport and warehousing'' control group is 
then removed from the model, for all practical purposes the model 
predicts no decline in telecommunications investment resulting from the 
potential for Title II reclassification. While telecommunications 
investment is still estimated to be -2.7% in the period following the 
announcement of potential Title II reclassification, the p-value is 
.71, which indicates that there is a 71% chance of obtaining a negative 
effect at least this large even if the null hypothesis of no effect on 
investment is true. In other words, this small negative effect is very 
likely due to random noise rather than there being a true negative 
effect of Title II regulation on investment. Therefore, if this paper 
supports anything, it supports the position that Title II 
reclassification had no effect on BIAS provider investment.
    277. The study's author, Dr. George Ford, offers a critique of the 
Commission's analysis and attempts to resuscitate his earlier 
assertions regarding Title II investment impacts with new analysis--
neither his critique nor new analysis are persuasive. As an initial 
matter, we note that Dr. Ford does not dispute that the underlying data 
was revised by the BEA since his study was performed, or that 
substituting the revised data into his previous model changes the 
results to show a statistically insignificant difference in investment 
following the announcement of Title II reclassification. Dr. Ford's 
primary argument is that we did not replicate his study when reaching 
our conclusions because we did not follow his ``entire research 
process'' when updating his analysis with the new BEA data. We note 
that Dr. Ford fails to cite a professionally accepted definition of 
replication from a peer reviewed article on this topic, but rather 
cites merely a website post for his definition. Dr. Ford implies that 
we should have changed his underlying model, including the control 
groups, as he proceeds to do in his new analysis. But his new analysis, 
like his prior analysis, does not conduct a proper DiD regression 
analysis with a replicable research process. As discussed below, Dr. 
Ford did not use a rigorous and principled methodology for selecting 
his control groups, and as such, there is no way that the Commission 
could predict which control groups Dr. Ford would choose now that the 
revised BEA data and original model no longer support his previous 
conclusions. Dr. Ford also changed his criteria for choosing the 
control groups, the level of aggregation at which control groups were 
selected, and his standard error procedure. As Dr. Ford acknowledges, 
the standard error procedure he now adopts for many of his new analyses 
would be more likely to (incorrectly) conclude that there is a 
statistically significant difference in investment when there is not. 
His ``entire research process,'' therefore, could not have been 
replicated. Even by his own--and not generally accepted--definition of 
replication, Dr. Ford also chose not to replicate his original study in 
the Ford Response, from which we conclude that he appears to be 
retracting the original study, or at least, conceding that it no longer 
supports the theory that Title II negatively impacts ISP investment.
    278. Even if we had been able to replicate his entire research 
process, the process he employs lacks rigor and is not in line with 
recommended best practices from the empirical economics literature. Dr. 
Ford appears to advocate basing the selection of DiD control groups 
entirely on a comparison of the pre-treatment trends in the outcome 
between the treatment and control groups. However, such a process is 
known to be theoretically dubious and statistically problematic. Dr. 
Ford is correct that one requirement for the DiD estimator to produce 
valid estimates is that ``the selected control group for the industries 
of interest plausibly satisfy the parallel paths (or common trends) 
assumption, where the investment of the control group serves as a 
reliable counterfactual for the treated group during the treatment 
period.'' However, demonstrating this plausibility requires much more 
than the ``visual inspection and some descriptive statistics'' 
methodology that he reports employing. Rigorous DiD analysis employs 
the following three principles when choosing controls: (1) there should 
be no reason to believe the untreated group would suddenly change 
around the time of treatment; (2) the treated group and untreated 
groups should be generally similar in many ways; and (3) the treated 
group and untreated groups should have similar trajectories for the 
dependent variable before treatment. In his analyses, Dr. Ford focuses 
only on the last principle and does not consider the first two 
principles. In fact, Dr. Ford explicitly argues against following 
principles 1 and 2 in the Ford Response and criticizes the Draft Order 
for raising this issue. Dr. Ford's other DiD analyses also do not 
properly construct an appropriate control group which further leads us 
to give no probative value to his findings. In a proper DiD research 
design, observing parallel trends in outcomes prior to treatment should 
be a consequence of choosing controls that are generally similar to the 
treated group, not the tool by which the controls are chosen. We note 
that the use of synthetic control methods does obviate the need to 
follow the first two principles. For example, in a widely cited 
synthetic control analysis of the economic effects of German 
reunification, even among Organization for Economic Cooperation and 
Development (OECD) countries, the authors excluded Luxemburg and 
Iceland ``because of their small size and because of the peculiarities 
of their economies.'' This illustrates that the authors followed 
principle 2. In addition, they excluded Canada, Finland, Sweden, and 
Ireland ``because these countries were affected by profound structural 
shocks during the sample period.'' This demonstrates that the authors 
also followed principle 1.
    279. Just as Dr. Ford's choice of the Transportation and 
Warehousing industry as a control in the previous analysis was in 
violation of the first principle, Dr. Ford makes the same

[[Page 45464]]

mistake in his new synthetic DiD (sDiD) analysis where this same 
control actually receives the largest weight. The Transportation and 
Warehousing industry is industry code 48 and receives a weight of 18.7% 
in his analysis. Dr. Ford also does not follow the second principle in 
both his previous and current analyses because he never explains why or 
how the treatment and control group industries are ``generally 
similar'' and would be expected to have similar technology and 
productivity shocks as the telecommunications industry. If Dr. Ford had 
properly chosen the initial control groups, then the controls would be 
valid in both the previous BEA data and revised BEA data. It is not 
accepted practice to change control groups and research design in 
response to changes in the underlying data. Finally, we note that both 
graphical and statistical comparisons between Dr. Ford's original data 
and the revised data confirm that the pre-treatment data for both the 
treatment and control groups are nearly identical between the two 
datasets. This is not surprising because the BEA conducts an Economic 
Census every five years and the newly collected data in the 2017 Census 
would generally have little impact on the investment data prior to 2012 
when the last Economic Census was conducted. Only the post-2010 
investment data for the telecommunications industry was significantly 
revised by the BEA. The pre-treatment trends remain essentially 
unchanged, suggesting that even by Dr. Ford's methodology, there is no 
basis for switching the control groups he originally selected. 
According to the control group selection methodology set forth in Dr. 
Ford's previous paper, the old control groups remain valid because 
``the pre-treatment growth rates are (statistically) the same between 
the treated and control groups.'' Therefore, even by Dr. Ford's own 
statements and line of reasoning, the Commission was correct to retain 
the old control groups when replicating his study. We further note that 
his only evidence that the control group industries are now 
inappropriate is that a ``pseudo-treatment'' dummy from 2007-2010 is 
now positive and statistically significant using his revised standard 
errors. However, Dr. Ford includes 2010, the year the Commission first 
sought comment on potential Title II classification, so this is an 
improper test under this method as it used data from the treatment 
period.
    280. The only other paper in the record that uses rigorous 
analytical methods and data to evaluate the effect of open internet 
regulations on investment uses a panel data set for 32 OECD countries 
covering the period from 2003 to 2019 and a fixed effects model to 
examine the impact of open-internet-type regulations on the deployment 
of new fiber connections. The paper finds that the adoption of open-
internet-type regulations in a country is associated with a 45% 
decrease in fiber investments. However, we have serious concerns 
regarding this paper that lead us to heavily discount its findings.
    281. Our first concern is that it is not clear whether the results 
of this study are even applicable to the present circumstances. The 
policies adopted by various countries and the market dynamics within 
them are wide ranging and quite different from the U.S. context. If the 
types of regulations adopted were not similar to those adopted here 
(for example, if a country adopted rate regulation), then these results 
would not be a good proxy for how the regulations we adopt in the Order 
would be expected to affect U.S. broadband investment.
    282. A second concern is that, in the present U.S. context, the 
size of the effect on broadband investment is implausibly large. The 
authors admit that the large magnitude of the effect is likely driven 
by the fact that, at the beginning of their sample, countries had 
almost no fiber connections so the growth rate in fiber connections was 
very high, while, at the end of their data sample, fiber coverage rates 
exceeded 100% in many countries with correspondingly low fiber 
connection growth rates. The crucial assumption the authors make to 
claim that they are identifying causal effects of the change in 
regulations is that decisions to implement or withdraw open-internet-
type regulations have been made exogenously, i.e., the timing of these 
decisions is effectively random because these decisions are made for 
ideological reasons and politicians make these decisions without 
considering market outcome variables such as the number of fiber 
connections in the country.
    283. We find that this identifying assumption may be faulty and the 
findings of this paper may be due to spurious correlations rather than 
the authors having identified true causal effects of the impact of 
open-internet-type regulation on investment. Contrary to the authors' 
assertions, we find that it is likely that changes in which political 
party controls a country is likely to have direct effects on investment 
unrelated to the adoption of open-internet-type regulations. For 
example, if more left-leaning parties in Europe tax investments at a 
higher rate than their right-leaning counterparts, then the authors' 
findings could be due to unaccounted-for changes in the tax system or 
other national policy change that occurred at the same time as the 
adoption or relaxation of open-internet-type rules. The authors' 
instrumental variable estimates may be flawed for this same reason. The 
authors use how ``left'' or ``right'' the current political party is as 
an instrument. However, this measure likely has a direct effect on 
broadband investment through multiple other channels, so it violates 
the fundamental assumption of an instrumental variable that it must be 
uncorrelated with the outcome of interest--broadband investment in this 
case--conditional on the other variables in model. In this context, 
instrumental variables estimation is often used when a treatment may 
not have been assigned to subjects randomly. In this case, the 
treatment is net neutrality regulations and OECD countries are the 
subjects of the experiment. An appropriate instrument in this example 
would be a third variable that is strongly correlated with the passage 
of net neutrality regulations in a country but, conditional on all the 
variables in the model, is not associated with the investment outcome 
except through its effect on the probability of net neutrality 
regulations being adopted. We find that whether the party in power is 
more ``left'' or ``right'' on the political spectrum is likely to exert 
a direct effect on ISP investment through many channels, and therefore 
this crucial ``exclusion restriction'' assumption is violated and the 
resulting estimates are biased.
    284. There is a simple alternative explanation for why the authors 
find such strong negative effects of open-internet-type regulation on 
broadband investment. If countries do not adopt open-internet-type 
regulations until BIAS becomes an essential service in the country, as 
is the case in the United States, and the countries for which it is 
essential have much higher fiber connection bases, then we would expect 
exactly the results the authors find. The growth rates in fiber 
connections in these mature broadband economies would be much lower 
than the growth rates in fiber connections in countries that have a low 
base number of such fiber connections due to a less mature broadband 
market. If this is the case, these lower observed fiber growth rates in 
countries with open-internet-type regulations would not be due to the 
adoption of those regulations. Consistent with this view, the two 
countries that were among the earliest

[[Page 45465]]

adopters of open-internet-type regulations in the authors' data sample, 
South Korea and Japan, were also the countries that had by far the 
greatest deployment of fiber connections at the time they adopted the 
rules between 2010-2011. In 2010, 58% of broadband subscriptions in 
Japan were provisioned by fiber-based technologies and 55% in South 
Korea were fiber-based, which far exceeded the rates observed in the 
next OECD country, the Slovak Republic at 29%, and many OECD countries 
had almost no fiber-based connections at the time. In short, it would 
not be possible for the growth rates in fiber access in these two early 
adopting countries of open-internet-type regulations to keep pace with 
the later adopting countries that had fiber access in the low single 
digits at the time, and the model specification estimated by the 
authors is not sufficiently rich to correct for these issues. The 
authors include country fixed effects, year dummies, lags in investment 
and time-varying covariates in their model, however, these controls are 
not sufficient to address our concerns and satisfy the fundamental 
identifying assumption of DiD models that ``the interventions are as 
good as random, conditional on time and group fixed effects.'' We 
conclude that it is not appropriate to compare fiber growth rates 
across these countries using this model.
    285. Finally, the authors admit that the results of all of their 
models are inconsistent and biased because the lagged dependent 
variable and the error term are correlated. For the only consistent and 
unbiased model they estimate, the bias-corrected fixed effects 
estimator, open-internet-type regulations are found to have a 
statistically insignificant effect on BIAS provider investment.
    286. As our detailed analysis demonstrates, the Commission's 
conclusions in the RIF Order that BIAS provider investment is closely 
tied to the classification of BIAS were not based on sound empirical 
analysis, and no new studies submitted in the current record support 
the conclusions of the RIF Order. Indeed, the record in both the Order 
and the RIF Order proceeding on the likely effect of Title II 
classification is ambiguous, offering conflicting viewpoints regarding 
the potential investment effects. The theoretical literature, empirical 
studies, and comments are all inconclusive. As such, we conclude that 
any changes in BIAS provider investment following the adoption of each 
Order were more likely the result of other factors unrelated to the 
classification of BIAS.
    287. The RIF Order also relied on a second study that used a 
``natural experiment,'' but this study was not submitted into the 
record of this proceeding. It found that DSL subscribership exhibited a 
statistically significant upward shift relative to its baseline trend 
after the Commission removed line-sharing rules on DSL in 2003 and 
again in response to the reclassification of DSL as a Title I 
information service in 2005. There appear to be several serious 
problems with this study. First, it considers changes in DSL 
subscribership, not changes in DSL investment, so it is not clear what 
inferences can be drawn about the effect of the regulatory changes on 
investment. Further, the authors attribute the increase in subscribers 
solely to the regulatory changes, without accounting for other factors 
that may have explained the increase. In particular, the authors ignore 
the fact that very high-speed digital subscriber line (VDSL) and 
asymmetric digital subscriber line (ADSL2) were developed and began to 
be deployed in 2001 and 2002, respectively, and both of these 
technologies significantly improved DSL speeds. It may be that these 
technological innovations and lagging DSL market shares led to the 
aggressive DSL price cuts that occurred starting in 2003 and this--not 
a change in regulations--led to the observed strong DSL subscriber 
gains relative to cable starting in 2003. Finally, we note that this 
study is also methodologically flawed. The effects of the 2003 and 2005 
regulatory changes that applied to DSL, if any, would also impact the 
other broadband providers in the market due to such providers being 
substitutes. Therefore, cable is not an appropriate comparison group 
and the inclusion of the growth rate in cable modem subscriptions in 
the estimation equation is endogenous (i.e., correlated with the error 
term), which results in statistically biased and inconsistent 
estimates.

II. Order: Forbearance for Broadband Internet Access Services

A. Forbearance Framework

    288. Section 10 of the Act provides that the Commission shall 
forbear from applying any regulation or provision of the Communications 
Act to telecommunications carriers or telecommunications services if 
the Commission determines that:
     enforcement of such regulation or provision is not 
necessary to ensure that the charges, practices, classifications, or 
regulations by, for, or in connection with that telecommunications 
carrier or telecommunications service are just and reasonable and are 
not unjustly or unreasonably discriminatory;
     provision is not necessary for the protection of 
consumers; and
     forbearance from applying such provision or regulation is 
consistent with the public interest.
    289. In making the determination under section 10(a)(3) that 
forbearance is in the public interest, the Commission shall consider 
whether forbearance from enforcing the provision or regulation will 
promote competitive market conditions, including the extent to which 
such forbearance will enhance competition among providers of 
telecommunications services. If the Commission determines that such 
forbearance will promote competition among providers of 
telecommunications services, that determination may be the basis for a 
Commission finding that forbearance is in the public interest. In 
addition, ``[a] State commission may not continue to apply or enforce 
any provision'' from which the Commission has granted forbearance under 
section 10.
    290. Our approach to forbearance here builds on the Commission's 
approach in the 2015 Open Internet Order. In that Order, the Commission 
broadly granted forbearance--to the full extent of its authority under 
section 10 of the Act--with respect to provisions of the Act and 
Commission rules that newly would have applied by virtue of the 
classification of BIAS as a telecommunications service there, subject 
only to exceptions in the case of certain expressly identified 
statutory provisions and Commission rules. The Commission also 
recognized that prior to the 2015 Open Internet Order some carriers 
chose to offer internet transmission services as telecommunications 
services subject to the full range of Title II requirements, and 
clarified that those carriers could elect to operate under the 2015 
Open Internet Order's forbearance framework instead of that legacy 
framework.
    291. It is unclear what effect the RIF Order had on the forbearance 
granted in the 2015 Open Internet Order. It is possible to view the RIF 
Order as implicitly vacating the forbearance granted in the 2015 Open 
Internet Order, so that forbearance does not remain in effect when we 
return to a Title II classification. Alternatively, the RIF Order's 
silence on this issue can be read to leave the forbearance granted in 
the 2015 Open Internet Order in place, so that it continues to apply 
automatically to BIAS once reclassified as a telecommunications service 
here, absent some action on our part to the

[[Page 45466]]

contrary. We conclude that the forbearance set forth in the Order is 
justified under either understanding. Except as expressly modified in 
the Order, the record in this proceeding and our own assessment each 
support and provide no reason to question the forbearance granted in 
the 2015 Open Internet Order, as we explain below, regardless of how 
the RIF Order's effect on that prior forbearance is conceptualized. We 
reject NCTA's arguments that ``ambiguity regarding the scope of 
forbearance risks undermining its efficacy.'' In purporting to find 
ambiguity in the 2015 Open Internet Order's approach to forbearance, 
NCTA cites a paragraph providing a high-level summary of aspects of the 
forbearance granted in that Order--which does not even appear in the 
forbearance section. That does not persuade us that the scope of 
forbearance as actually described in the forbearance section of the 
2015 Open Internet Order--or the scope of forbearance as described in 
our forbearance section here--is ambiguous in a way that undercuts the 
efficacy of that regulatory relief. In further support of its claims of 
ambiguity, NCTA contends that ``the NPRM itself does not specifically 
propose to forbear from Section 251(c) . . . or even discuss the 
Commission's intent with respect to unbundling and other similar 
common-carrier requirements under Title II of the Act.'' But the 2023 
Open Internet NPRM was clear that the Commission was proposing ``to use 
the forbearance granted in the 2015 Open Internet Order as the starting 
point for our consideration of the appropriate scope of forbearance,'' 
and the 2015 Open Internet Order was explicit in the forbearance it was 
granting from (among other things) section 251(c) of the Act and common 
carrier requirements such as those that would enable ex ante rate 
regulation. Independently, as the Commission observed in this regard in 
2015, ``the Commission cannot impose a penalty for conduct in the 
absence of `fair notice of what is prohibited.' '' Consequently, we are 
not persuaded that our approach to forbearance results in ambiguity 
regarding the scope of relief that undercuts its efficacy.
    292. In evaluating and applying the section 10(a) forbearance 
criteria, we follow the same basic analytical approach used by the 
Commission in the 2015 Open Internet Order and affirmed by the D.C. 
Circuit in its USTA decision. As a threshold matter, we do not grant 
forbearance beyond the scope of our authority under section 10 of the 
Act. As the Commission explained in the 2015 Open Internet Order, 
``[c]ertain provisions or regulations do not fall within the categories 
of provisions of the Act or Commission regulations encompassed by that 
language because they are not applied to telecommunications carriers or 
telecommunications services, and we consequently do not forbear as to 
those provisions or regulations.''
    293. We also target our forbearance analysis to those provisions of 
the Act or Commission rules that would not apply but for our 
classification of BIAS as a telecommunications service and our 
classification of mobile BIAS as a commercial mobile service. That 
follows the Commission's approach in the 2015 Open Internet Order, and 
also is how we contemplated targeting forbearance as proposed in the 
2023 Open Internet NPRM in this proceeding. The record does not 
persuade us to depart from that focus here, but BIAS providers remain 
free to seek relief from other provisions or regulations through 
appropriate filings with the Commission.
    294. Section 706 of the 1996 Act once again informs our forbearance 
analysis here, as well. That provision ``explicitly directs the FCC to 
`utiliz[e]' forbearance to `encourage the deployment on a reasonable 
and timely basis of advanced telecommunications capability to all 
Americans.' '' Within the statutory framework that Congress 
established, the Commission ``possesses significant, albeit not 
unfettered, authority and discretion to settle on the best regulatory 
or deregulatory approach to broadband.'' Thus, as in 2015, we seek to 
strike the appropriate balance between retaining statutory protections 
and our open internet rules to adequately protect the public, while 
minimizing the burdens on BIAS providers and ensuring incentives for 
broadband deployment consistent with the objectives of section 706 of 
the 1996 Act.
    295. One element of adopting a balanced regulatory approach is 
giving BIAS providers reasonable regulatory predictability about the 
obligations that will or will not be applied under that framework. We 
thus reject broad-brush arguments that we should not forbear from 
applying provisions that are by their own terms discretionary in some 
manner. As a threshold matter, we see no indication in the text of 
section 10 that provisions of the Act that give the Commission 
discretion in their application to telecommunications carriers or 
telecommunications are somehow categorically beyond the purview of 
forbearance. Independently, insofar as forbearance incrementally 
increases the clarity BIAS providers have about the regulatory 
framework we are adopting here--given the need to grapple with the 
section 10 criteria in addition to any discretion within a forborne-
from provision itself before it could be applied in the future--we find 
it reasonable to account for the benefit provided by such greater 
regulatory predictability in our application of the section 10 
criteria.
    296. At the same time, we also are not persuaded that our 
forbearance decisions here provide insufficient clarity and regulatory 
predictability about providers' regulatory obligations. Fundamentally, 
these commenters' concerns are not truly directed at our approach to 
forbearance but instead at the threshold classification decision. We 
have determined that BIAS is a telecommunications service under the 
best reading of the Act and its application to the record evidence 
here. As a result, certain legal consequences under the Act flow from 
that by default. The substantial forbearance we grant from rules and 
provisions reaches the full extent of what we find warranted at this 
time under the section 10 framework, which is the tool Congress 
provided for the Commission to tailor those default regulatory 
consequences. We therefore reject the suggestion that we improperly are 
using forbearance to increase regulation. Our classification decision 
simply ``bring[s] the law into harmony with the realities of the modern 
broadband marketplace'' and against that backdrop our use of 
forbearance plays its traditional role in granting relief from the 
legal consequences that otherwise would flow by default from that 
determination as warranted by the section 10 criteria. To the extent 
that commenters are concerned that forbearance decisions could be 
revisited, they do not demonstrate that it would be trivial for the 
Commission to do so, particularly if reasonable reliance interests 
could be demonstrated. Nor does the record reveal ways that the 
Commission could provide even greater regulatory predictability to 
providers beyond the approach adopted here while still honoring what we 
find to be the best understanding of the Act in our classification of 
BIAS.
    297. We also follow the conceptual approach from the 2015 Open 
Internet Order by considering the practical realities under an 
``information service'' classification of BIAS to inform our section 
10(a) analysis. As the Commission observed in 2015, although that 
baseline is not itself dispositive of the appropriate regulatory 
approach to BIAS, it is reasonable for the Commission to weigh concerns 
about the burdens or regulatory uncertainty

[[Page 45467]]

that could arise from sudden changes in the actual or potential 
regulatory requirements and obligations. Given agencies' discretion to 
proceed incrementally, our forbearance analysis accounts for benefits 
from adopting an incremental approach here. While we find that the 
tailored regulatory framework we adopt in the Order strikes the right 
balance, we note that the D.C. Circuit has recognized the Commission's 
authority to revisit its decision should that prove not to be the case. 
That said, although our conceptual approach in this regard tracks what 
the Commission did in 2015, our application of that approach naturally 
accounts for the additional experience and insight the Commission has 
gained in the years since the RIF Order. In addition, there is a 
petition for judicial review of the RIF Remand Order still pending and 
the petitions for reconsideration of that Order were pending until our 
action in the Order. Consequently, the insights we draw from the recent 
past account for the likelihood that the unresolved status of the 
regulatory approach adopted in the RIF Order could well have tempered 
BIAS providers' conduct relative to what they otherwise might have 
engaged in.
    298. In addition, our analytical approach as to all the provisions 
and regulations from which we forbear in the Order is consistent with 
section 10(a) as interpreted by the Commission and courts. Consistent 
with precedent, in interpreting the word ``necessary'' in section 
10(a)(1) and (a)(2) we consider whether a current need exists for a 
rule or statutory requirement. Under section 10(a)(1), we consider here 
whether particular provisions and regulations are ``necessary'' to 
ensure ``just and reasonable'' rates and practices with respect to 
BIAS. In full, section 10(a)(1) directs the Commission to consider 
whether enforcement ``is not necessary to ensure that the charges, 
practices, classifications, or regulations by, for, or in connection 
with that telecommunications carrier or telecommunications service are 
just and reasonable and are not unjustly or unreasonably 
discriminatory.'' As a shorthand, we refer to that as requiring an 
analysis of whether rates and practices will be just and reasonable. 
And under section 10(a)(2), we consider whether particular provision 
and regulations are ``necessary for the protection of consumers.'' 
Consistent with our conclusion in the 2015 Open Internet Order, when 
evaluating whether there is a current need for a rule or provision to 
ensure just and reasonable rates and practices and to protect 
consumers, we can account for policy trade-offs that can arise under 
particular regulatory approaches. Thus, even when confronted with 
arguments that applying a rule or provision could have some near-term 
benefit, we nonetheless reasonably could conclude that application of 
the rule or provision is not currently necessary within the meaning of 
section 10(a)(1) or (a)(2) based on countervailing intermediate- or 
longer-term consequences of applying the rule or provision. This 
approach also is consistent with how the Commission has applied the 
``just and reasonable'' criteria and otherwise evaluated consumers' 
interests under other provisions of the Act.
    299. Under section 10(a)(3), the Commission considers whether 
forbearance is consistent with the public interest. This inquiry allows 
us to account for additional factors beyond the sort of considerations 
we evaluate under section 10(a)(1) and (a)(2), guided by the 
Commission's statutory duties.
    300. We agree with the 2015 Open Internet Order that persuasive 
evidence of competition is not a necessary prerequisite to granting 
forbearance under section 10 so long as the section 10 criteria 
otherwise are met. As the 2015 Open Internet Order observed, although 
competition can be a sufficient basis to grant forbearance, it is not 
inherently necessary in order to find section 10 satisfied. To the 
extent that commenters cite prior forbearance decisions relying on 
competition as sufficient to justify forbearance, that precedent does 
not persuade us that competition is inherently necessary to justify 
forbearance. Nothing in the text of section 10 requires that 
forbearance be premised on a finding of sufficient competition where 
the Commission can conclude that the rules or provisions are not 
``necessary'' under section 10(a)(1) and (a)(2) and that forbearance is 
in the public interest under section 10(a)(3) on other grounds. A 
statute that ``by its terms merely requires the Commission to 
consider'' some factor does not mean that the Commission must ``give 
any specific weight'' to the factor, and the Commission may 
``ultimately conclude[ ] that it should not be given any weight.'' That 
interpretation of section 10 is not altered where the rules or 
provisions at issue involve measures to facilitate competition, despite 
some claims to the contrary. To the extent that Congress wanted the 
Commission to make additional findings beyond the general requirements 
of section 10(a) in order to forbear from particular market-opening 
provisions of the Act, it did so explicitly, precluding the Commission 
from forbearing from the application of sections 251(c) or 271 of the 
Act ``until it determines that those requirements have been fully 
implemented.'' Given that we have found those provisions to be fully 
implemented, we reject the view that we cannot simply apply the section 
10(a) criteria according to their terms when evaluating forbearance 
from market opening provisions of the Act and instead must make 
different or more specific findings to justify forbearance. Even when 
implementing such provisions, the Commission often has rejected a 
single-minded focus on competition to the exclusion of other policies 
such as network deployment consistent with the goals of section 706 of 
the 1996 Act, and we see nothing in section 10 of the Act that would 
require a single-minded focus on competition when considering 
forbearance from such rules or provisions. In any case, the D.C. 
Circuit in USTA has ``found reasonable the Commission's conclusion that 
its section 10 analysis did not need to incorporate any statutory 
requirement arising from section 251.'' Judge Williams, dissenting in 
part in USTA, contended that Commission forbearance precedent had not, 
to that point, involved the convergence of rules or provisions designed 
to facilitate competition that were subject to a grant of forbearance 
without heavy reliance on a competitive analysis. Whether or not 
Commission precedent prior to the 2015 Open Internet Order involved the 
precise convergence of factors identified by Judge Williams, we see 
nothing in section 10 of the Act that would categorically preclude the 
Commission from granting such forbearance.
    301. We reject claims that an identified need for regulation in one 
respect to address shortcomings in competition--such as with respect to 
BIAS providers' gatekeeper role--implies a need for regulation in other 
respects, as well. In other contexts the Commission has, for example, 
regulated charges that certain carriers impose on other carriers 
without finding it necessary to adopt ex ante regulation of those same 
carriers' end-user charges. And the Commission has recognized such 
distinctions between charges imposed on other providers and charges 
imposed on end users in this context, as well. Separately and 
independently, although the 2015 Open Internet Order did not find 
pervasive evidence of competition or treat it as in itself sufficient 
to justify forbearance, it would be a mistake to conclude that 
competition plays no role at all in our analysis. As the Commission 
concluded in 2015, ``there is some amount of

[[Page 45468]]

competition for broadband internet access service,'' even if ``it is 
limited in key respects,'' and the Commission's overall regulatory 
approach to BIAS, by striking the right balance between current 
regulation and longer-term investment incentives, ``thus does advance 
competition in important ways.'' This kind of recognition of potential 
trade-offs associated with particular regulatory approaches is 
consistent with our reading of the section 10(a) criteria, as discussed 
above. In addition, we note that, during the last 15 years, when BIAS 
was classified as Title I information service or subject to forbearance 
under Title II, we have seen no significant increases in prices or 
unreasonably discriminatory pricing that would seem to warrant the 
imposition of rate regulation or tariffing requirements.
    302. As in the 2015 approach, ``[b]ecause the Commission is not 
responding to a petition under section 10(c), we conduct our 
forbearance analysis under the general reasoned decision making 
requirements of the Administrative Procedure Act, without the burden of 
proof requirements that section 10(c) petitioners face.'' Consistent 
with that approach, in our rulemaking decision here, we explain our 
application of the statutory forbearance criteria and other relevant 
statutory objectives such as section 706 of the 1996 Act in the level 
of detail necessitated by the record and our own assessment of the 
merits of forbearance from applying particular rules or provisions. We 
conclude that satisfies our statutory obligations under section 10 of 
the Act and the APA. We agree with Public Knowledge that we should not 
grant forbearance ``cavalierly.'' But we disagree with Public Knowledge 
insofar as it suggests that we approach the section 10 analysis with a 
presumption against forbearance. We seek to faithfully apply the 
section 10 forbearance criteria here without artificially placing a 
thumb on the scale either for or against forbearance. That approach 
best effectuates the Act as a whole, which not only reflects Congress's 
default regulatory approach for telecommunications carriers and 
telecommunications service but also directs that the Commission 
``shall'' forbear where the section 10 criteria are met, as part and 
parcel of that overall legal framework. We are unpersuaded by claims 
that our application of the section 10 forbearance criteria in a manner 
akin to that done in the 2015 Open Internet Order would violate the 
nondelegation doctrine. Under Supreme Court precedent, a delegation is 
constitutionally permissible if Congress has ``la[id] down by 
legislative act an intelligible principle to which the person or body 
authorized to [exercise the delegated authority] is directed to 
conform.'' Section 10 readily satisfies that standard by directing the 
Commission that it shall forbear where the rule or provision is not 
necessary to ensure just and reasonable rates and practices; is not 
necessary for the protection of consumers; and where forbearance is in 
the public interest--including based on its competitive effects. These 
are the types of assessments that Congress has entrusted to the 
Commission since the original enactment of the Communications Act. The 
Commission's authority to act in the public interest is not 
``unlimited.'' ``[T]he words `public interest' in a regulatory 
statute'' do not give an agency ``broad license to promote the general 
public welfare,'' but rather ``take meaning from the purposes of the 
regulatory legislation.'' Thus, for example, the Supreme Court has held 
that the Communications Act's public interest standard, in context, is 
sufficiently definite to overcome a nondelegation challenge. We 
likewise conclude that the section 10(a) analysis is guided by 
intelligible principles set down by Congress, and we therefore reject 
the view that section 10 of the Act violates the nondelegation doctrine 
either in general or as applied here.
    303. Once again, where warranted we also evaluate forbearance 
assuming arguendo that particular provisions of the Act or Commission 
rules apply to BIAS, rather than ``first exhaustively determining 
provision-by-provision and regulation-by-regulation whether and how 
particular provisions and rules apply to this service.'' We agree with 
the 2015 Open Internet Order's reasoning that ``to achieve the balance 
of regulatory and deregulatory policies adopted here for BIAS, we need 
not--and thus do not--first resolve potentially complex and/or disputed 
interpretations and applications of the Act and Commission rules that 
could create precedent with unanticipated consequences for other 
services beyond the scope of this proceeding, and which would not alter 
the ultimate regulatory outcome in this Order in any event.''
    304. Given our approach in this regard, we conclude that simple 
counts of provisions of the Act or Commission rules subject to 
forbearance do not shed meaningful light on the extent to which our 
regulatory approach to BIAS under the Order differs in practice from 
the default obligations under Title II of the Act or otherwise for 
purposes of arguments that a telecommunications service classification 
of BIAS (and commercial mobile service classification of mobile BIAS) 
are contrary to the Act's statutory scheme. As in the 2015 Open 
Internet Order, forbearance is not used solely to grant relief from 
default regulatory requirements affirmatively known and established to 
be both applicable and burdensome. Rather, outside of certain key 
requirements affirmatively determined to fall outside the scope of 
justified forbearance, we grant forbearance broadly even as to 
requirements that theoretically could newly apply by virtue of the 
classification decision and, if they applied, would represent any 
manner of departure from the preexisting status quo under an 
information service classification. The Commission has taken this 
approach not based on an affirmative determination that the default 
regulatory requirements are somehow inherently incompatible with BIAS 
but in the interest of being crystal clear about the targeted ways in 
which the regulatory regime being applied here will depart from the 
status quo under an information service classification. We thus find 
that simply counting the number of provisions of the Act or Commission 
rules subject to forbearance sheds no meaningful light on the magnitude 
of any practical departure in our regulatory approach here from the 
default requirements of the Act and our implementing rules.
    305. Independently, the notion that even extensive forbearance 
would illustrate the incompatibility of our approach with the statutory 
scheme established by Congress fails to appreciate the full scope and 
operation of the 1996 Act understood against its regulatory backdrop. 
The Commission's section 10 forbearance authority was part and parcel 
of the regulatory regime enacted for telecommunications carriers and 
telecommunications services in the 1996 Act. The criteria specified in 
section 10 for when the Commission shall forbear from applying the Act 
or Commission rules to telecommunications carriers or 
telecommunications services track nearly verbatim the standard Congress 
established in 1993 in section 332(c)(1) of the Act for the Commission 
to specify requirements of Title II that would be inapplicable to 
commercial mobile service providers. And prior to the enactment of the 
1996 Act, the Commission already had relied on that section 332(c)(1) 
authority to grant commercial mobile service providers broad relief 
from the requirements of Title II, including relief from, among other 
things, the tariffing requirements

[[Page 45469]]

that the Supreme Court characterized as ``the heart of the common-
carrier section of the Communications Act'' under the pre-1996 Act 
framework. There can be little doubt that when Congress enacted section 
10 of the Act against that backdrop, it contemplated that services 
meeting the definition of ``telecommunications services'' likewise 
could--and would--be subject to broad forbearance where justified by 
the statutory criteria. Such an outcome thus is entirely compatible 
with the overall legal framework Congress enacted in the 1996 Act.
    306. We disagree with arguments that our exercise of forbearance is 
contrary to MCI v. AT&T and Biden v. Nebraska. In MCI, the Supreme 
Court rejected the Commission's attempt to eliminate tariffing for 
competitive common carriers, concluding that exempting carriers from 
those obligations represented a ``fundamental revision of the statute'' 
that Congress was unlikely to have authorized through ``a subtle 
device'' in the statutory language like the Commission's authority to 
``modify'' tariffing requirements. And relying on MCI, the Court in 
Biden v. Nebraska similarly concluded that ``statutory permission to 
`modify' does not authorize `basic and fundamental changes in the 
scheme' designed by Congress.'' By contrast, as the Commission has long 
recognized, Congress enacted section 10 forbearance authority in 
response to MCI--to grant the Commission the authority to make more 
extensive changes that the MCI Court previously found lacking. That 
fact--coupled with Congress's decision to model section 10 on section 
332(c)(1) under which the Commission previously granted broad 
forbearance in the past--amply demonstrates that section 10 forbearance 
authority was intentionally designed by Congress to authorize more 
expansive changes than what would flow from distinct statutory language 
of the sort at issue in MCI and Biden v. Nebraska. And the 
circumstances here also bear no meaningful similarity to the Court's 
objection in Biden v. Nebraska that the Department of Education was 
seeking to ``augment[ ] and expand[ ] existing [statutory] provisions 
dramatically.'' In this case, after exercising the explicitly-granted 
forbearance authority in accordance with the terms specified by 
Congress, the remaining requirements that we apply flow directly from 
the statutory regime Congress enacted as applied to BIAS consistent 
with our classification decision here.
    307. Finally, our forbearance with respect to BIAS does not 
encompass internet transmission services that incumbent local exchange 
carriers or other common carriers chose to offer as telecommunications 
services subject to the full range of Title II requirements prior to 
the 2015 Open Internet Order. The RIF Order observed that such services 
``have never been subject to the [2015 Open Internet Order] forbearance 
framework,'' and stated that ``carriers that choose to offer 
transmission service on a common carriage basis are, as under the 
Wireline Broadband Classification Order, subject to the full set of 
Title II obligations, to the extent they applied before the'' 2015 Open 
Internet Order. The 2015 Open Internet Order did, however, allow a 
provider previously offering broadband transmission on a common carrier 
basis ``to change to offer internet access services pursuant to the 
construct adopted in'' that Order subject to filing with and review by 
the Wireline Competition Bureau of the provider's proposal for the 
steps it would take to convert to such an approach. In the 2023 Open 
Internet NPRM we proposed to follow the same approach again here, and 
no commenter opposes that proposal. As such, our forbearance with 
respect to BIAS does not encompass such services.

B. Maintaining Targeted Authority To Protect Consumers, Promote 
National Security, and Preserve the Broadband Ecosystem

    308. We find that the standard for forbearance is not met with 
respect to BIAS for the following limited provisions:
     Sections 201, 202, and 208, along with the related 
enforcement provisions of sections 206, 207, 209, 216, and 217, and the 
associated complaint procedures; and the Commission's implementing 
regulations (but, to be clear, the Commission forbears from all 
ratemaking authority based on, or ratemaking regulations adopted under, 
sections 201 and 202);
     Section 214 entry certification requirements, pursuant to 
which the Commission considers all aspects of the public interest 
associated with section 214 authorizations, including national 
security, law enforcement, and other concerns. We grant blanket section 
214 authority for the provision of BIAS to all current and future BIAS 
providers, with exceptions and subject to the Commission's reserved 
power to revoke such authority and waive the Commission's implementing 
rules in section 214(a)-(d) of the Act. Our grant of blanket section 
214 authority includes authority for entry, acquisitions (including 
transfers of control and assignments), and temporary or emergency 
service and related requirements. We forbear from section 214 exit 
certification requirements regarding the discontinuance, reduction, or 
impairment of BIAS and the Commission's implementing section 214(a)-(d) 
rules. In addition, since we classify mobile BIAS as a commercial 
mobile service in the Order, the existing forbearance from all domestic 
section 214 requirements for CMRS providers applies to mobile BIAS 
providers. That forbearance is maintained and undisturbed by the Order;
     Sections 218, 219, and 220(a)(1) and (c)-(e), which enable 
the Commission to conduct inquiries and obtain information;
     Section 222, which establishes core customer privacy 
protections (while waiving application of our current implementing 
rules to BIAS);
     Section 224 and the Commission's implementing rules, which 
grant certain benefits that foster network deployment by providing 
telecommunications carriers with regulated access to poles, ducts, 
conduits, and rights-of-way;
     Sections 225, 255, and 251(a)(2), and the Commission's 
implementing rules, which collectively advance access for persons with 
disabilities, except that the Commission forbears from the requirement 
that BIAS providers contribute to the Telecommunications Relay Service 
(TRS) Fund at this time; and
     Section 254, the interrelated requirements of section 
214(e), and the Commission's implementing regulations to strengthen the 
Commission's ability to support broadband, supporting the Commission's 
ongoing efforts to support broadband deployment and adoption.
    309. Our forbearance decision in this subsection focuses on 
addressing consequences arising from the reclassification of BIAS in 
the Order. Thus, we do not forbear with respect to requirements to the 
extent that they already applied prior to the Order without regard to 
the classification of BIAS. Similarly, consistent with the 2015 Open 
Internet Order, to the extent that provisions or regulations apply to 
an entity by virtue of other services it provides besides BIAS, the 
forbearance in the Order does not extend to that context. Consistent 
with the Commission's conclusions in the 2015 Open Internet Order, the 
Order does not alter any additional or broader forbearance previously 
granted that already might encompass BIAS in certain circumstances, for 
example, insofar as BIAS, when provided by mobile providers, is a CMRS 
service. As one example, the Commission has

[[Page 45470]]

granted some forbearance from section 310(d) for certain wireless 
licensees that meet the definition of ``telecommunications carrier.'' 
But section 310(d) is not itself framed in terms of ``common carriers'' 
or ``telecommunications carriers'' or providers of ``CMRS'' or the 
like, nor is it framed in terms of ``common carrier services,'' 
``telecommunications services,'' ``CMRS services'' or the like. To the 
extent that such forbearance thus goes beyond the forbearance for 
wireless providers granted in the Order, the Order does not narrow or 
otherwise modify that pre-existing grant of forbearance.
1. Authority To Protect Consumers and Promote Competition (Sections 201 
and 202)
    310. The Commission has previously described sections 201 and 202 
as lying ``at the heart of consumer protection under the Act,'' 
providing, along with their attendant enforcement sections, ``bedrock 
consumer protection obligations.'' The Commission has never previously 
completely forborne from these important statutory protections, and we 
generally do not find forbearance warranted here. We find sections 201 
and 202 of the Act, along with section 208 and certain fundamental 
Title II enforcement authority, necessary to ensure just, reasonable, 
and nondiscriminatory conduct by BIAS providers and necessary to 
protect consumers under section 10(a)(1) and (a)(2). We also find that 
forbearance from these provisions would not be in the public interest 
under section 10(a)(3), and therefore do not grant forbearance from 
those provisions and associated enforcement procedural rules with 
respect to BIAS. However, particularly in light of the protections the 
open internet rules provide and the ability to employ sections 201 and 
202 in case-by-case adjudications, we are otherwise persuaded to 
forbear from applying sections 201 and 202 of the Act to the extent 
they would permit the adoption of ex ante rate regulation of BIAS in 
the future, as discussed below. To be clear, this ex ante rate 
regulation forbearance does not extend to inmate calling services and 
therefore has no effect on our ability to address rates for inmate 
calling services under section 276.
    311. Section 201 enables the Commission to protect consumers 
against unjust or unreasonable charges, practices, classifications, and 
regulations in connection with BIAS. And section 202 prohibits 
discrimination in the provision of communications services, thereby 
advancing the Commission's goals of ending digital discrimination and 
promoting universal service and digital equity. In order to forbear 
from these statutory provisions, we would have to conclude, among other 
things, that their enforcement is not necessary for consumer 
protection, something the record provides no basis to do. Indeed, the 
Commission has previously taken enforcement action against providers 
under section 201 for violation of consumers' privacy rights. And 
Congress itself recognized the importance of sections 201 and 202 when 
it specifically excluded them (along with section 208) from earlier 
CMRS-specific forbearance authority under section 332(c)(1)(A).
    312. Additionally, sections 201 and 202 reinforce the Commission's 
ability to preserve internet openness, and applying these provisions 
benefits the public broadly by helping foster innovation and 
competition at the edge, thereby promoting broadband infrastructure 
investment nationwide. Thus, in this respect, our decision to apply the 
provisions actually will promote competitive market conditions at the 
edge. As explained below, the open internet rules adopted in the Order 
reflect more specific protections against unjust or unreasonable 
practices for or in connection with BIAS. These benefits--which can 
extend beyond the specific dealings between a particular BIAS provider 
and customer--persuade us that forbearance from sections 201 and 202 
here is not in the public interest.
    313. We also observe that section 201(b) enables the Commission to 
regulate BIAS-only providers that serve MTEs and thereby end unfair, 
unreasonable, and anticompetitive practices facing MTE residents, 
furthering the Commission's goals to foster competition and promote 
consumer choice for those living and working in MTEs. Obligating BIAS-
only providers to abide by the same kinds of rules--including those 
that prohibit exclusivity contracts that bar competition outright in 
MTEs--that other telecommunications and cable providers must currently 
follow will secure the same protections for all residents of MTEs, 
regardless of the kind of service offered by providers in their 
building; reduce regulatory asymmetry between BIAS-only providers and 
other kinds of providers; and potentially improve competition in the 
MTE marketplace. Therefore, we do not forbear from Sec.  64.2500 of our 
rules as to BIAS providers, which prohibits common carriers from 
entering into certain types of agreements and requires disclosure of 
others. BIAS-only providers should therefore ensure that all MTE-
related contracts entered into subsequent to the effective date of the 
Order we adopt in the Order are in compliance with Sec.  64.2500. With 
respect to pre-existing MTE-related contracts, we temporarily waive 
Sec.  64.2500 with respect to these contracts for BIAS-only providers 
for a period of 180 days to allow these providers to bring their pre-
existing contracts into compliance with Sec.  64.2500. The Commission 
may waive its rules and requirements for ``good cause shown,'' which 
may be found ``where particular facts would make strict compliance 
inconsistent with the public interest.'' In making this determination, 
the Commission may ``take into account considerations of hardship, 
equity, or more effective implementation of overall policy,'' and if 
``special circumstances warrant a deviation from the general rule and 
such deviation will serve the public interest.'' We find good cause in 
this instance to provide adequate notice and time to give BIAS-only 
providers an opportunity to bring pre-existing contracts for MTEs into 
compliance with our newly applicable MTE rules. We note that this 180-
day period is consistent with the time the Commission has previously 
granted providers to bring their pre-existing contracts into compliance 
with newly enacted MTE rules. We reject LARIAT's request that the 
Commission exempt small providers from ``restrictions'' on ``bulk 
billing of multi-tenant dwellings.'' LARIAT does not provide a specific 
justification for exempting small BIAS providers from our MTE 
requirements, but rather generalizes that these provisions (along with 
others) ``could'' impose ``tremendous unnecessary burdens on our 
company . . . and also harm consumers.'' We have provided all BIAS-only 
providers a suitable period of time to come into compliance with these 
provisions, and further, the Commission's MTE provisions are designed 
to protect, not harm, consumers and LARIAT provides no evidence to the 
contrary.
    314. For the foregoing reasons we find that sections 201 and 202 of 
the Act are necessary to ensure just, reasonable, and nondiscriminatory 
conduct by BIAS providers and necessary to protect consumers under 
sections 10(a)(1) and (a)(2). Moreover, retaining these provisions is 
in the public interest because it provides the Commission direct 
statutory authority to protect internet openness and promote fair 
competition while allowing the Commission to adopt a tailored

[[Page 45471]]

approach and forbear from most other requirements. We find that our 
sections 201 and 202 authority provides a more flexible framework 
better suited to the broadband marketplace than many of the alternative 
regulations--such as ex ante rate regulations and interconnection 
requirements--from which we are forbearing but which otherwise would be 
necessary. We thus reject the arguments of some commenters against the 
application of these provisions insofar as they assume that such 
additional regulatory requirements also will apply in the first 
instance. Such considerations provide additional grounds for our 
conclusion that section 10(a)(3) is not satisfied as to forbearance 
from sections 201 and 202 of the Act with respect to BIAS.
    315. We disagree with commenters urging the Commission to forbear 
from sections 201 and 202 outright. WISPA disputes the value section 
202 brings to the Commission's antidiscrimination efforts, highlighting 
the broad enforcement powers Congress conferred upon the Commission and 
the rules established in our digital discrimination proceeding. But 
these sections enable the Commission to advance digital equity in other 
ways not contemplated elsewhere, including providing authority for our 
open internet rules.
    316. We also disagree with ACA Connects and WISPA that the 
Commission should forbear from applying sections 201 and 202 to small 
BIAS providers. ACA Connects contends that reclassification would 
impose burdensome costs and that smaller service providers lack the 
resources, such as in-house legal staff, needed to navigate a Title II 
world. They thus argue that the Commission should grant forbearance 
from direct application of sections 201 and 202 and instead ``bring ad 
hoc enforcement actions . . . for conduct that falls outside the scope 
of the proposed conduct-based rules.'' Similarly, WISPA asserts that 
there is ``ample evidence that application of these requirements to 
smaller providers will do more harm than good.'' These arguments fail 
to consider that sections 201 and 202 serve as a legal basis for 
adoption of the open internet conduct rules. Further, in making these 
arguments, commenters fail to acknowledge the legal framework applied 
in the CMRS context, where sections 201 and 202 have applied for years. 
This history should allay any ``concerns . . . about potential burdens, 
or uncertainty, resulting from the application of sections 201 and 
202,'' and we conclude that providers, both small and large, will find 
ample guidance about the application of sections 201 and 202 via our 
open internet rules.
2. Enforcement (Sections 206, 207, 208, 209, 216, and 217)
    317. We also do not forbear from section 208's complaint proceeding 
rules and other fundamental Title II enforcement provisions. In 
particular, we do not forbear from applying section 208 of the Act and 
the associated procedural rules, which provide a complaint process for 
enforcement of applicable provisions of the Act or any Commission 
rules. We also retain additional statutory provisions that we find 
necessary to ensuring a meaningful enforcement process. In particular, 
we do not forbear from sections 206, 207, and 209. Without these 
provisions that permit ``redress through collection of damages,'' 
Section 208's complaint protections would be ``virtually meaningless.'' 
Allowing for the recovery of damages does not mean that an award of 
damages necessarily would be appropriate in all, or even most, cases. 
The Commission has discretion to deny an award of damages and grant 
only prospective relief where a case raises novel issues on which the 
Commission has not previously spoken, or where the measurement of 
damages would be speculative. The Commission also has authority to 
adopt rules and procedures that are narrowly tailored to address the 
circumstances under which damages would be available in particular 
types of cases. Section 208 and its associated procedural rules, as 
well as sections 206 and 207, which serve as a necessary adjunct to the 
complaint process, provide the public the means to ``file a complaint 
with the Commission and seek redress.'' We similarly do not forbear 
from sections 216 and 217, which ``were intended to ensure that a 
common carrier could not evade complying with the Act by acting through 
others over whom it has control or by selling its business.'' Thus, we 
do not forbear from enforcing these key Title II enforcement provisions 
with respect to BIAS.
    318. In the event that a carrier violates its common carrier 
duties, the section 208 complaint process would permit challenges to a 
carrier's conduct, and many commenters advocate for section 208 to 
apply. The Commission's procedural rules establish mechanisms to carry 
out that enforcement function in a manner that is well-established and 
clear for all parties involved. The Commission has never previously 
forborne from section 208. Indeed, we find it instructive that in the 
CMRS context Congress specifically precluded the Commission from using 
section 332 to forbear from section 208. Commenters also observe the 
important interrelationship between section 208 and sections 206, 207, 
216, and 217, which the Commission itself has recognized in the past, 
as discussed above. We note, however, that in complaint proceedings 
filed pursuant to section 207, courts have historically been careful to 
consider the Commission's views as a matter of primary jurisdiction on 
the reasonableness of a practice under section 201(b). A Federal 
district court may determine that the Commission is better to suited to 
answer the particular question before the court in the first instance 
and elect to invoke the primary jurisdiction doctrine. The primary 
jurisdiction doctrine applies where a claim is originally cognizable in 
the courts, and comes into play whenever enforcement of the claim 
requires the resolution of issues which, under a regulatory scheme, 
have been placed within the special competence of an administrative 
body; in such a case the judicial process is suspended pending referral 
of such issues to the administrative body for its views. In addition, 
to forbear from sections 216 and 217 would create a loophole in our 
ability to evenly enforce the Act, which would imperil our ability to 
protect consumers and to protect against unjust or unreasonable 
conduct, and would be contrary to the public interest. The prospect 
that carriers may be forced to defend their practices before the 
Commission supports the strong public interest in ensuring the 
reasonableness and nondiscriminatory nature of those actions, 
protecting consumers, and advancing our overall public interest 
objectives. For the reasons discussed above, we thus reject the 
assertions of some commenters that enforcement is unduly burdensome. In 
particular, we are not persuaded that such concerns outweigh the 
overarching interest advanced by the enforceability of sections 201 and 
202. Nothing in the record demonstrates that our need for enforcement 
differs among broadband providers based on their size, and we thus are 
not persuaded that a different conclusion in our forbearance analysis 
should be reached in the case of small broadband providers, for 
example. While some commenters express fears of burdens arising from 
the application of these provisions to BIAS, we find such arguments to 
be speculative, particularly given the lack of evidence of such actions 
where those provisions historically have applied (including in the CMRS 
context). As a result, for all of the foregoing reasons, we conclude

[[Page 45472]]

that none of the section 10(a) criteria is met as to forbearance from 
these fundamental Title II enforcement provisions and the associated 
Commission procedural rules with respect to BIAS. As explained above, 
sections 201 and 202 do not pose the existential threat that some 
commenters claim they do. Moreover, individuals harmed by a provider's 
unlawful practices must have some means of being made whole, and we 
agree with the Lawyers' Committee that section 208 is ``essential'' for 
pursuing claims of discrimination and other harms.
3. Requirement for a Certificate of Public Convenience and Necessity 
(Section 214)
    319. We do not forbear from the entry certification requirements of 
section 214(a)-(d) of the Act with respect to the provision of BIAS. 
Section 214(a) requires carriers to obtain a Commission certification 
to construct, acquire, operate, or engage in transmission over lines of 
communication. By reclassifying BIAS as a Title II telecommunications 
service subject to section 214, the Commission can ensure that the 
``present or future public convenience and necessity'' is served, 
including its obligation to protect the Nation's telecommunications 
networks and to protect the United States from entities that pose 
threats to national security and law enforcement interests. To ensure 
continued service for consumers and to provide regulatory certainty to 
BIAS providers, however, we grant blanket section 214 authority for the 
provision of BIAS to all current and future BIAS providers, with 
exceptions and subject to the Commission's reserved power to revoke 
such authority. Specifically, to protect national security and law 
enforcement interests, we exclude the following entities and their 
current and future affiliates and subsidiaries from this blanket 
section 214 authority--China Mobile International (USA) Inc. (China 
Mobile USA), China Telecom (Americas) Corporation (CTA), China Unicom 
(Americas) Operations Limited (CUA), Pacific Networks Corp. (Pacific 
Networks), and ComNet (USA) LLC (ComNet)--whose application for 
international section 214 authority was previously denied or whose 
domestic and international section 214 authority was previously revoked 
by the Commission in view of national security and law enforcement 
concerns. The Order does not modify China Mobile USA's blanket domestic 
section 214 authority to provide other domestic interstate services and 
to construct or operate any other domestic transmission line, which was 
not addressed in the China Mobile USA Order. The Commission retains the 
authority to revoke a carrier's blanket domestic section 214 authority 
when warranted.
    320. Section 214 entry certification, albeit blanket certification, 
is consistent with our conclusion that reclassifying BIAS as a 
telecommunications service will significantly bolster the Commission's 
ability to carry out its statutory public interest responsibilities to 
safeguard national security and law enforcement. The Supreme Court has 
determined that the Commission has considerable discretion in deciding 
how to make its section 214 public interest findings. Exercising this 
section 214 authority achieves two core purposes--national security and 
the promotion of safety of life and property--and is integral to the 
Commission's public interest assessment of providers seeking to provide 
essential BIAS to consumers. The 2023 Open Internet NPRM recognized 
that reclassification of BIAS ``is necessary to unlock tools the 
Commission needs to fulfill its objectives and responsibilities to 
safeguard this vital service.''
    321. The importance of section 214 of the Act with regard to the 
Commission's national security efforts is evident in the Commission's 
actions concerning entities that are majority-owned and controlled by 
the Chinese government. Over the past several years, the Commission 
denied an application for international section 214 authority and 
revoked certain carriers' section 214 authority based on 
recommendations and comments from interested Executive Branch agencies 
regarding evolving national security and law enforcement concerns. In 
one of those proceedings, the Executive Branch agencies and the 
Commission confronted the implications of changed circumstances in the 
national security environment on the evaluation of international 
section 214 authority. In each of these revocation actions, the 
Commission extensively evaluated national security and law enforcement 
concerns raised by existing section 214 authorizations and determined, 
based on thorough record development, that the present and future 
public interest, convenience, and necessity was no longer served by 
those carriers' retention of their section 214 authority. We disagree 
with commenters that contend that an insignificant fraction of all BIAS 
providers serving U.S. customers ``present the type of national 
security risk that the Commission intends to address,'' or that ``there 
is no indication that any of the carriers whose section 214 
authorizations the Commission revoked in recent years provides BIAS.'' 
At the time the Commission took these actions, section 214 did not 
apply to BIAS, potentially exposing the Nation's communications 
networks to national security and law enforcement threats by entities 
providing BIAS or seeking to provide BIAS. We believe the same national 
security and law enforcement concerns identified in the Commission's 
recent denial and revocation and/or termination proceedings equally 
exist with respect to these and other entities providing BIAS or 
seeking to provide BIAS. We agree with arguments in the record that 
applying section 214 of the Act to the provision of BIAS may have 
significant future national security, law enforcement, and other 
benefits by enhancing the Commission's ability to act immediately in 
response to future threats. By declining to forbear from the 
application of the section 214 entry authorization requirement to BIAS, 
we build upon these and other actions the Commission has taken to 
strengthen and advance its ability to protect U.S. telecommunications 
networks and critical infrastructure against national security threats. 
For instance, in November 2019, the Commission prohibited the use of 
public funds from the Commission's Universal Service Fund (USF) to 
purchase, obtain, maintain, improve, modify, or otherwise support any 
equipment or services produced or provided by companies posing a 
national security threat to the integrity of communications networks or 
the communications supply chain.
    322. We find that BIAS is subject to section 214 on the basis of it 
being both a domestic and an international telecommunications service. 
The Commission has employed different rules for domestic and 
international section 214 authorizations to date. Within the category 
of international section 214 authorizations, it has adopted a 
regulatory approach that turns, among other things, on the particular 
destination country to be served. BIAS is defined as a ``service by 
wire or radio that provides the capability to transmit data to and 
receive data from all or substantially all internet endpoints,'' and 
our interpretation of ``all internet endpoints'' includes, without 
distinction, foreign as well as domestic endpoints. Thus, BIAS 
necessarily involves ``foreign communication'' as well as ``interstate 
communication'' (and at least some intrastate communication, as well). 
Given the global nature of BIAS, we find it appropriate to treat BIAS 
as a mixed

[[Page 45473]]

domestic and international service. We recognize that the Commission 
stated in the 2015 Open Internet Order that ``[b]roadband internet 
access service involves the exchange of traffic between a last-mile 
broadband provider and connecting networks.'' But what could be termed 
the ``physical'' location or scope of a service does not dictate its 
jurisdictional status, which instead turns on the jurisdiction of the 
communications being carried.
a. Blanket Section 214 Authority Is Granted for the Provision of BIAS, 
With Exceptions and Subject to the Commission's Reserved Power To 
Revoke Such Authority
    323. While section 214 entry authorization is critical to protect 
national security and law enforcement interests, we recognize that 
entry certification entails costs. Commenters argue that the Commission 
should forbear from section 214, citing potential costs, delays, and 
administrative burdens on BIAS providers. They raise concerns about 
lengthy and burdensome application processes, especially for small BIAS 
providers, and consequences for investment and innovation. At least one 
commenter claims that the networks of smaller BIAS providers ``are not 
prone'' to evolving national security and other concerns, and the 
Commission should not apply section 214 to smaller BIAS providers. To 
address these concerns while protecting our telecommunications 
networks, and supported by the record, we grant blanket section 214 
authority for the provision of BIAS to any entity currently providing 
or seeking to provide BIAS--except those specific identified entities 
whose application for international section 214 authority was 
previously denied or whose domestic and international section 214 
authority was previously revoked and their current and future 
affiliates and subsidiaries.
    324. Such blanket section 214 authority is subject to the 
Commission's reserved power to revoke, consistent with established 
statutory directives and longstanding Commission determinations with 
respect to section 214 authorizations. The Commission has explained 
that it grants blanket section 214 authority, rather than forbearing 
from application or enforcement of section 214 entirely, in order to 
remove barriers to entry without relinquishing its ability to protect 
consumers and the public interest by withdrawing such grants on an 
individual basis. The Order does not alter the Commission's current 
rules implementing section 214 as applied to all other services subject 
to section 214 of the Act. We believe that blanket section 214 
authority will allow BIAS providers to continue operating and providing 
BIAS without the need for Commission-approved applications at this 
time. While certain benefits arising from our decision not to forbear 
may be difficult to quantify, such as the current and future protection 
of national security, law enforcement, or other public interest 
benefits, we nevertheless conclude that the expected benefits of 
applying section 214 entry authority to the provision of BIAS through 
the Order greatly exceed any potential costs to providers. The costs to 
providers are, in any event, minimized by our grant of blanket 
authority with no prescriptive entry requirements. Our decision to 
condition grant of blanket section 214 authority for the provision of 
BIAS on the Commission's reserved power to revoke such authority is 
consistent with the established statutory directives and longstanding 
Commission determinations with respect to section 214 authorizations. 
In previously granting all telecommunications carriers blanket domestic 
section 214 authority, the Commission found that the ``present and 
future public convenience and necessity require the construction and 
operation of all domestic new lines pursuant to blanket authority,'' 
subject to the Commission's ability to revoke a carrier's section 214 
authority when warranted to protect the public interest. Indeed, when 
the Commission opened the U.S. telecommunications market to foreign 
participation in the late 1990s, it delineated a non-exhaustive list of 
circumstances where it reserved the right to designate for revocation 
an international section 214 authorization based on public interest 
considerations and stated that it considers ``national security'' and 
``foreign policy'' concerns when granting authorizations under section 
214 of the Act.
    325. Based on the key public interest considerations that inform 
our action in the Order, we reserve the right to conduct ad hoc review 
of whether a provider's retention of blanket section 214 authority for 
the provision of BIAS presents national security, law enforcement, 
public safety, or other risks that warrant revocation of such 
authority. We disagree that this important safeguard associated with 
blanket section 214 authority causes uncertainty for BIAS providers as 
the Commission has clearly established that it continues to reassess on 
an ad hoc basis whether a carrier's retention of section 214 authority 
presents national security or other risks that warrant revocation of 
its section 214 authority. The Executive Branch agencies also may 
recommend that the Commission modify or revoke an existing 
authorization if they at any time identify unacceptable risks to 
national security or law enforcement interests of the United States. If 
revocation or termination may be warranted, the Commission may 
institute a revocation proceeding to ``provide the authorization holder 
such notice and an opportunity to respond as is required by due process 
and applicable law, and appropriate in light of the facts and 
circumstances.''
b. China Mobile USA, CTA, CUA, Pacific Networks, ComNet, and Their 
Current and Future Affiliates and Subsidiaries Are Excluded From 
Blanket Section 214 Authority for BIAS
    326. To further protect the Nation's telecommunications networks 
from threats to national security and law enforcement, we exclude China 
Mobile USA, CTA, CUA, Pacific Networks, ComNet, and their current and 
future affiliates and subsidiaries from grant of blanket section 214 
authority for the provision of BIAS. We find that excluding these 
Chinese government-owned entities and their current and future 
affiliates and subsidiaries from blanket section 214 authority is 
warranted based on the Commission's prior determinations that the 
present and future public interest, convenience, and necessity would no 
longer be served by these Chinese government-owned entities' retention 
of section 214 authority, or that the public interest would not be 
served by the grant of international section 214 authority.
    327. The Commission found that these entities are subject to 
exploitation, influence, and control by the Chinese government, and 
that mitigation would not address the national security and law 
enforcement concerns. The Commission identified national security and 
law enforcement concerns with respect to the entities' access to 
internet PoPs (usually located within data centers) and other harms in 
relation to the services provided by those entities pursuant to section 
214 authorization. To deter evasion of our exclusion of these entities, 
and consistent with the Commission's inclusion of these entities and 
their affiliates and subsidiaries in the list of equipment and services 
covered by section 2 of the Secure and Trusted Communications Networks 
Act, we also exclude their current and future affiliates and 
subsidiaries from our grant of blanket section 214 authority. Of 
course, any entity affected by this

[[Page 45474]]

exclusion remains free to petition the Commission for section 214 
authority under the statute and demonstrate how grant of the authority 
would serve the public interest, convenience, and necessity.
c. Transition Period for China Mobile USA, CTA, CUA, Pacific Networks, 
and ComNet
    328. We direct China Mobile USA, CTA, CUA, Pacific Networks, and 
ComNet and their affiliates and subsidiaries to discontinue any and all 
provision of BIAS no later than sixty (60) days after the effective 
date of the Order as established in the Federal Register. We require 
these entities to provide notice of service discontinuance to all 
affected customers within thirty (30) days after the effective date of 
the Order as established in the Federal Register. The Order shall be 
effective sixty (60) days after publication in the Federal Register. 
Such notice shall be in writing to each affected customer. We further 
require the entities to file a copy of the standard notice(s) sent to 
their customers (without providing the Commission with any customers' 
personally identifiable information (PII)) in the docket of this 
proceeding through the Commission's Electronic Comment Filing System 
(ECFS) within sixty (60) days after the effective date of the Order as 
established in the Federal Register. If the entity does not provide 
BIAS, the entity shall file a letter attesting to this information and 
certified by a corporate officer in ECFS within sixty (60) days after 
the effective date of the Order as established in the Federal Register. 
We find this transition reasonable, as the Commission previously gave 
CTA, CUA, Pacific Networks, and ComNet this same transition period to 
discontinue all services previously provided under section 214 
authority, and it should mitigate any difficulties BIAS customers may 
face in finding other providers.
d. Waiver of Rules Implementing Section 214(a)-(d) of the Act
    329. We recognize that application of the Commission's current 
rules implementing section 214(a)-(d) of the Act, which historically 
have addressed traditional telecommunications services, may raise 
operational issues in the context of BIAS. For example, the current 
rules contain requirements with respect to the regulatory 
classification of U.S. international carriers as ``either dominant or 
non-dominant for the provision of particular international 
communications services on particular routes''; notification by, and 
prior approval for, U.S. international carriers that are, or propose to 
become, affiliated with a foreign carrier; conditions applicable to all 
international section 214 authorizations; conditions applicable to 
authorized facilities-based international carriers; and conditions 
applicable to carriers authorized to resell the international services 
of other authorized carriers. In addition, some commenters suggest that 
the Commission should pursue a further rulemaking to consider 
implementation of rules under section 214(a)-(d) that are tailored to 
BIAS in view of our classification of BIAS herein. The Commission 
expects to release a further notice of proposed rulemaking (FNPRM) at a 
future time to examine whether any section 214 rules specifically 
tailored to BIAS, including for small providers, are warranted. But in 
light of the current record and the blanket authority we grant herein, 
we find it appropriate to waive the current rules implementing section 
214(a)-(d) of the Act with respect to BIAS to the extent they are 
otherwise applicable. In light of the forbearance we grant for section 
214 related exit authority, i.e., discontinuance requirements, it is 
unnecessary to waive our discontinuance rules to the extent they would 
be applicable to BIAS as a telecommunications service.
    330. The Commission may waive its rules and requirements for ``good 
cause shown.'' In the 2023 Open Internet NPRM, we sought comment on 
issues related to implementation of section 214, including whether we 
should adopt temporary forbearance, grant blanket section 214 
authority, or act in some other manner. One commenter proposed issuing 
a waiver of the rules if the Commission does not forbear from section 
214. Good cause, in turn, may be found ``where particular facts would 
make strict compliance inconsistent with the public interest.'' In 
making this determination, the Commission may ``take into account 
considerations of hardship, equity, or more effective implementation of 
overall policy,'' and whether ``special circumstances warrant a 
deviation from the general rule and such deviation will serve the 
public interest.'' The current rules were established in the context of 
traditional telecommunications services. Given our consideration of 
hardship and equity that may arise by immediate application of those 
rules to BIAS following our action in the Order, we find there is good 
cause to waive those rules pending the adoption of BIAS-specific rules 
at some future time to the extent the public interest dictates.
    331. We find that the public interest is served by this waiver as 
it will ensure that consumers can continue to receive the broadband 
internet access services to which they presently subscribe and avoid 
any disruption to, or uncertainty for, BIAS consumers and BIAS 
providers. We reiterate that with respect to mobile BIAS, because we 
conclude herein that mobile BIAS is a commercial mobile service, it is 
subject to the forbearance granted for CMRS providers as a whole in 
1994. We note that this forbearance from domestic section 214 
requirements as applied to mobile BIAS providers will also apply to 
mobile satellite service providers, to the extent they provide mobile 
satellite broadband service, that are licensed as common carriers for 
the provision of service that meets the statutory definition of CMRS 
(e.g., mobile earth station licensees). Under our decision in the 
Order, mobile BIAS, including mobile satellite broadband service, will 
continue to be subject to international section 214 requirements for 
their international operations, but as discussed, we are granting 
blanket section 214 authority for the provision of BIAS set forth in 
the Order. The Commission anticipates issuing an FNPRM to consider what 
rules should apply going forward. As we observed in the 2023 Open 
Internet NPRM, our Title III licensing authority with respect to 
facilities-based mobile BIAS providers independently ``grant[s] us 
important authority that can be used to advance national security and 
public safety with respect to the services and equipment subject to 
licensing.''
e. The Commission Will Forbear From the Section 214 Exit Certification 
Requirement
    332. We find the section 10 criteria met for forbearance from 
applying the exit certification requirements in section 214(a)-(d) and 
the Commission's implementing rules to the extent they would newly 
apply through the classification of BIAS as a Title II 
telecommunications service. As explained above, we focus our regulatory 
oversight on the entry certification requirement for BIAS providers and 
find it prudent to forbear from mandating an exit certification that 
would require them to obtain approval from the Commission to 
discontinue, reduce, or impair service to a community. Knowing that we 
can ensure that the Commission can review existing and future BIAS 
participants serving consumers through their blanket entry into the 
market, we find that there is no current need to also require exit 
certifications. Doing so would conflict with the overall tailored 
regulatory approach we adopt and that is designed to promote 
infrastructure investment and innovation. We are persuaded by

[[Page 45475]]

commenters that BIAS providers' freedom to make network investments is 
optimized when they need not divert capital to outdated network 
equipment and services while seeking discontinuance approval. We agree 
that applying section 214 in a targeted and narrow manner to address 
national security and law enforcement concerns allows us to monitor 
market entrants that may then invest and innovate without being 
``locked in'' to maintaining those investments as circumstances and 
technology evolve. This is also consistent with the 2015 Open Internet 
Order, which acknowledged that discontinuance obligations entail costs 
and that it is important to incrementally apply regulations beyond the 
status quo. Thus, applying the exit certification provision of section 
214(a) of the Act is not ``necessary'' under section 10(a)(1) and 
(a)(2). We thus disagree with those commenters that support not 
forbearing from section 214 exit requirements because of alleged public 
safety benefits with respect to discontinuance requirements. The 
services for which they are primarily concerned are not BIAS and remain 
subject to our sections 214 discontinuance rules.
    333. For those same reasons, we also find that forbearance is in 
the public interest under section 10(a)(3). Some commenters have raised 
important issues regarding the ability of consumers and companies to 
maintain awareness of potential service changes and disruptions, 
including for alarm companies monitoring and public safety activities. 
To the extent that Public Knowledge urges the Commission to avoid 
forbearance and instead waive the section 214 exit certification 
requirements, we note that while the Commission may waive its rules, it 
may not generally waive a provision of a statute. Forbearance is the 
mechanism for not applying statutory provisions when warranted. 
Carriers remain subject to section 214 discontinuance requirements for 
all telecommunications services other than BIAS, including for 
telephone exchange and other services, and for services being 
transitioned to IP-based technology, which appear to be the focus of 
the Alarm Industry Communications Committee's (AICC) concerns at this 
time. As services evolve, providers must ensure that customers remain 
informed. As we stated in the 2015 Open Internet Order, our universal 
service rules are designed to advance the deployment of broadband 
networks, including in rural and high-cost areas. Providers receiving 
funding to deploy networks are subject to public interest obligations 
that protect consumers subscribing to BIAS, including in rural areas or 
in areas that might have only one provider. In addition, the conduct 
standards in our open internet rules are a necessary backstop to ensure 
BIAS providers act reasonably and provide protections against reduction 
or impairment of BIAS short of complete cessation of providing that 
service. As the Commission determined in the 2015 Open Internet Order, 
all of these protections are sufficient to protect consumers.
4. Information Collection and Reporting To Promote National Security, 
Public Safety, and Improve Network Resiliency (Sections 218, 219, and 
220(a)(1), (c)-(e))
    334. We do not forbear from sections 218, 219, and 220(a)(1) and 
(c)-(e) of the Act. The Commission was created in part ``[f]or the 
purpose of obtaining maximum effectiveness from the use of radio and 
wire communications in connection with safety of life and property.'' 
As we conclude in the Order, reclassification of BIAS is essential to 
protecting national security and public safety. Sections 218, 219, and 
220(a)(1) and (c)-(e) of the Act provide the Commission with the 
ability to inquire into the management of providers, collect 
information, and require reporting, among other things, in order to 
carry out the Commission's duties. Sections 218, 219, and 220 provide 
additional tools necessary to ensure that our Nation's networks are 
reliable, secure, and protected from bad actors seeking to disrupt our 
communications and access sensitive information. For example, sections 
218 and 220(a)(1) and (c) will enhance the Commission's ability to 
require BIAS providers to report outages through NORS and DIRS, which 
promotes the Commission's ongoing efforts to improve network resiliency 
and increase situation awareness during disasters. Further, sections 
218, 219, and 220(a)(1) and (c)-(e) will provide the Commission with 
the ability to obtain information from BIAS providers that is essential 
to the Commission's performance of its duties and statutory 
responsibilities. For example, in the Evolving Risks Order, the 
Commission adopted a one-time collection of foreign ownership 
information from international section 214 authorization holders, 
noting that the information will assist the Commission in developing a 
timely and effective process for prioritizing the review of 
international section 214 authorizations that are most likely to raise 
national security, law enforcement, foreign policy, and/or trade policy 
concerns. Additionally, sections 220(a)(1) and (c) will enhance the 
Commission's ability to require BIAS providers to establish 
cybersecurity risk management plans and other best practices to 
mitigate exploitation of BIAS networks. For these reasons, we find that 
forbearance from sections 218, 219, and 220(a)(1) and (c)-(e) of the 
Act would neither serve the public interest under section 10(a)(3) nor 
satisfy the requirements of section 10(a)(2) as it pertains to the 
protection of consumers. Although WISPA argues that section 220(a)(2)'s 
recordkeeping requirements would be unduly burdensome for smaller 
providers, WISPA itself acknowledges the Commission's ability to tailor 
application thereof as necessary.
    335. We agree with Free Press that we should exclude section 218 
from forbearance because it could be an important source of 
investigative authority, and that we should retain section 220(c) to 
address national security. We are not persuaded by the Computer & 
Communications Industry Association (CCIA) that we should forbear from 
these sections because the Commission forbore from them in 2015. 
Because of the changed circumstances since 2015, we find that the 
national security and public safety benefits require that we exclude 
these sections from forbearance. We also disagree with WISPA that 
enforcement of sections 218 and 220 will be burdensome to small 
providers. Arguments about the hypothetical costs and burdens to 
providers are speculative if and until we take additional regulatory 
action pursuant to those sections, at which time the Commission would 
consider the impact on small providers. Furthermore, we find that the 
benefits to national security, public safety, and network resiliency 
likely weigh in favor of not forbearing from these sections.
5. Customer Privacy (Section 222)
    336. As proposed, we do not forbear from section 222 of the Act, 
which establishes core privacy protections for customers of 
telecommunications services, as well as other entities that do business 
with Title II providers. We do, however, waive the rules implementing 
section 222 to the extent such rules are applicable to BIAS as a 
telecommunications service by virtue of the Order. Section 222 governs 
telecommunications carriers' protection, use, and disclosure of 
information obtained from their customers or other carriers. The 
requirements of section 222 themselves impose duties on carriers, and 
the Commission has recognized its ability to directly enforce

[[Page 45476]]

the statutory requirements of section 222 even in the absence of rules 
specifically addressing a given issue. We find that forbearance from 
section 222 would neither serve the public interest under section 
10(a)(3) nor satisfy the requirements of section 10(a)(2) as it 
pertains to the protection of consumers. Our decision in the Order 
conforms to the Commission's long history of protecting consumer 
privacy, and the Commission's long-held understanding that 
``[c]onsumers' privacy needs are no less important when consumers 
communicate over and use broadband internet access than when they rely 
on [telephone] services.'' We also find that because section 222 places 
an obligation on telecommunications carriers to protect the 
confidentiality of the proprietary information of, and relating to, 
other telecommunications carriers (including resellers), equipment 
manufacturers, and business customers, requiring BIAS providers to 
comply with section 222 will protect information concerning entities 
that interact with BIAS providers.
    337. As discussed above, the record supports our finding that BIAS 
providers serve as a necessary conduit for information passing between 
their customers and internet sites or other users, and are thus 
situated to collect vast swaths of sensitive information about their 
customers, including personal information, financial information, 
precise location information, and information regarding their online 
activity. And this finding, in turn, supports our conclusion not to 
forbear from section 222. A 2021 FTC Staff Report found that BIAS 
providers collect and combine data across product lines, collect data 
beyond what is necessary to provide the service (including the websites 
that customers visit, the shows they watch, the apps they use, details 
about their home energy use, their real-time and historical location, 
and their internet search queries), use web data to target ads, group 
consumers using sensitive characteristics, and share real-time location 
data with third parties. Evidence suggests that consumers may not fully 
comprehend--and therefore may not be able to meaningfully consent to--
BIAS providers' collection, processing, and disclosure of customer 
information. Further, as the American Library Association explains, 
``due to the lack of competition, even if consumers understand the 
extent to which their ISP collects their personal data, they most 
likely do not have the option to switch to an ISP that aligns with 
their privacy and data security goals.'' As just one example that 
illustrates the fact that providers do not compete on privacy--and the 
importance of the Commission's domain-specific expertise in the area of 
privacy enforcement--we note that all of the nationwide wireless 
carriers are currently subject to Forfeiture Orders for their similar 
failures to protect customer location information. We remain concerned 
that, absent statutory and regulatory requirements to do so, BIAS 
providers have minimal incentive to adopt adequate administrative, 
technical, physical, and procedural safeguards to protect their 
customers' data from improper or excessive uses by providers 
themselves, or from further disclosure and misuse by third parties. 
Additionally, WISPA's contention that protection of CPNI may be 
particularly burdensome for small providers is not itself cause for 
forbearance from section 222 outright. A customer's privacy needs do 
not fluctuate with the size of a provider, and therefore section 
10(a)'s forbearance criteria, which focus on whether a requirement is 
necessary to ensure just and reasonable and nondiscriminatory 
practices, do not justify the relief requested by WISPA.
    338. We also disagree with CCIA's position that the Commission 
must, at this time, apply section 222 to BIAS providers only with 
respect to `` `information' that is a clear analog to the non-BIAS 
telecommunications service information that the Commission is charged 
with protecting.'' As an initial matter, we observe that the Commission 
has never provided an exhaustive list of what constitutes CPNI. But 
more importantly, as explained above, the Commission's privacy 
authority under Title II is not limited to CPNI. Sections 222(a) and 
201 also impose obligations, which we enforce, on carriers' practices 
with regard to non-CPNI customer proprietary information and PII. We 
see no reason to depart from that approach with respect to BIAS; on the 
contrary, the types of sensitive information to which BIAS providers 
have access by virtue of their provision of BIAS as a service 
underscores the imperative of applying section 222 to BIAS providers 
broadly--i.e., without limiting its application to only particular 
information types. Similarly, we are unpersuaded by USTelecom's 
suggestion that section 222 only applies to CPNI, as defined therein, 
and does not provide authority beyond that as cause for forbearance.
    339. We reject assertions that application of section 222 to BIAS 
will lead to ``regulatory bifurcation'' of privacy on the internet, or 
that it would be arbitrary and capricious for the Commission to impose 
privacy requirements on BIAS providers while leaving larger edge, 
content, or social media platforms, such as Google, Apple, and Meta, 
subject to the FTC's section 5 authority. As an initial matter, we 
think that the statutory framework makes clear that the Commission has 
authority over the misuse of the ``underlying communications 
infrastructure by consumer-facing service providers, whereas the FTC . 
. . concerns itself with businesses offering their products and 
services by means of that infrastructure.'' Further, we disagree that 
BIAS providers' access to user data ``is not comprehensive.'' And, as 
the Lawyers' Committee explains, ``even when communications content is 
encrypted or uninspected, unshielded metadata can still reveal highly 
sensitive information.''
    340. In addition, assertions that ``[i]t is confusing for consumers 
when privacy regimes differ based on who holds the information'' ignore 
the fact that consumers are already subject to a dichotomy of privacy 
regimes. Currently, a provider of mobile voice service is subject to 
the section 222 privacy and data protection framework, while mobile 
BIAS offered by the same provider, and used on the same device, is 
currently not subject to the same framework under the RIF Order. We are 
skeptical of claims, and find no actual evidence in the record, that 
consumers view their use of over-the-top applications like Google Maps, 
YouTube, or TikTok--applications that a consumer chooses to download 
and to which they consent to provide their information--as more closely 
comparable to BIAS than they view BIAS as comparable to other 
communications services, like voice services, which are typically 
provided by, and billed in conjunction with, their broadband services. 
On the contrary, we find that declining to forbear from applying 
section 222 to BIAS will support a consistent privacy and data security 
framework for voice and data services, which consumers often subscribe 
to from one provider in a bundle and perceive to be part of the same 
service, particularly for mobile services.
    341. Finally, we also disagree with commenters' assertions that 
application of section 222 to BIAS is inconsistent with the 
Congressional Review Act (CRA). As one independent basis for our 
decision, this argument fails because it attempts to impute Congress's 
2017 CRA resolution with respect to the Commission's 2016 Privacy Order 
(81

[[Page 45477]]

FR 87274 (Jan. 3, 2017)) to the Commission's 2015 Open Internet Order. 
Specifically, in the 2015 Open Internet Order, the Commission 
classified BIAS as a telecommunications service and granted forbearance 
from the Commission rules implementing section 222, but did not grant 
forbearance from section 222 itself. Thus, the application of section 
222 to BIAS was established by the 2015 Open Internet Order, and that 
Order was not subject to a resolution of disapproval. While 
Commissioner Carr's dissent suggests that enforcement under the statute 
might fall short because ```calls' are the only telecommunications 
services specifically mentioned in section 222,'' this argument 
overlooks the fact that the relevant requirements under section 222--
specifically section 222(a) and 222(c)--and the definition of CPNI 
found in section 222(h) do not refer to ``calls'' but instead to 
``telecommunications'' services, thus allowing for Commission 
enforcement under the Act. Indeed, we note that such enforcement was 
specially contemplated by the Commission following the CRA resolution.
    342. The argument about the 2017 CRA resolution of disapproval also 
fails for additional, independent reasons. Subsequent to the 2015 
reclassification of BIAS as a telecommunications service subject to 
section 222, the Commission attempted to further address privacy 
requirements for BIAS providers, adopting rules in the 2016 Privacy 
Order that applied to BIAS providers in addition to other 
telecommunications carriers and interconnected VoIP providers. In 2017, 
however, Congress nullified those 2016 revisions to the Commission's 
privacy rules under the CRA. Pursuant to the language of the Resolution 
of Disapproval, the 2016 Privacy Order was rendered ``of no force or 
effect.'' That resolution conformed to the procedure set out in the 
CRA, which requires agencies to submit most rules to Congress before 
they can take effect and provides a mechanism for Congress to 
disapprove of such rules. Pursuant to the operation of the CRA, the 
2016 Privacy Order ``may not be reissued in substantially the same 
form, and a new rule that is substantially the same as such a rule may 
not be issued, unless the reissued or new rule is specifically 
authorized by a law enacted after the date of the joint resolution 
disapproving the original rule.''
    343. Commenters' CRA arguments are unavailing on their own terms, 
however. As the Commission explained in the Data Breach Notification 
Order (89 FR 9968 (Feb. 12, 2024)), ``the CRA is best interpreted as 
prohibiting the Commission from reissuing the 2016 Privacy Order in 
whole, or in substantially the same form, or from adopting another item 
that is substantially the same as the 2016 Privacy Order.'' It does not 
prohibit the application of Title II generally, or sections 222 or 201 
specifically, to BIAS, nor does it prohibit the Commission from 
considering the later adoption of regulations implementing those 
obligations. We do not, through our reclassification of BIAS as a 
telecommunications service, reinstate the 2016 Privacy Order or, for 
that matter, any of the rules that it adopted. And even if one 
considers the aggregate effect of Commission actions related to 
privacy, we are not persuaded that they collectively adopt or 
effectuate rules that are substantially the same as the 2016 Privacy 
Order as a whole. This is particularly true because the 2016 Privacy 
Order was focused in substantial part on privacy rules for BIAS 
providers, and as discussed in the next paragraph, our application of 
section 222 to BIAS providers here is not substantially the same as the 
rules adopted for BIAS providers in the 2016 Privacy Order. If the 
Commission later initiates a proceeding to consider privacy rules for 
BIAS pursuant to Title II, it will be bound by the CRA not to issue a 
rule that is substantially the same as the 2016 Privacy Order. We are 
doubtful that future Commission actions that recapitulated some or even 
all of the data elements that constituted customer proprietary network 
information in the BIAS context under the 2016 Privacy Order would run 
afoul of the CRA resolution, as suggested by Commissioner Carr's 
dissent. And, in any event, based on the Commission's long experience 
enforcing section 222 without having offered a comprehensive definition 
of CPNI, we do not anticipate any difficulty in enforcing section 222 
with respect to BIAS providers without first adopting a comprehensive 
definition of BIAS CPNI that includes virtually all data and metadata 
elements.
    344. Indeed, even if, as some parties argue, the CRA prohibits the 
Commission from adopting rules similar to some of the aspects of the 
2016 Privacy Order, we believe that reinstating the applicability of 
the statutory obligations and the Commission's ability to consider 
other regulatory obligations still would not be contrary to the 
Resolution of Disapproval, and serves the public interest. As explained 
in the Data Breach Notification Order, the 2016 Privacy Order ``made a 
number of changes to the Commission's privacy rules that, among other 
things, required carriers to disclose their privacy practices, revised 
the framework for customer choice regarding carriers' access, use, and 
disclosure of the customers' information, and imposed data security 
requirements in addition to data breach notification requirements.'' 
For example, the 2016 Privacy Order specified in detail the contents 
that had to be included in privacy notices, including mandatory 
disclosures related to other substantive requirements adopted in the 
2016 Privacy Order, requirements for translation into languages other 
than English, and detailed requirements for where and how the notice is 
made available and updated. As another example, the 2016 Privacy Order 
adopted detailed customer approval requirements, including when opt-out 
approval was permitted; when and how approval must be solicited; and 
detailed requirements for a mandatory mechanism to grant, deny, or 
withdraw approval at any time. And as another example, the 2016 Privacy 
Order restricted BIAS providers' conditioning service on waiver of 
privacy rights, including limiting the incentives BIAS providers could 
offer customers in exchange for authorization to use, disclose, and/or 
permit access to the customer's personal information. Although the 
basic principles underlying the requirements adopted in the 2016 
Privacy Order obviously flow from the statutory requirements of section 
222 themselves, section 222 alone (even when coupled with open internet 
rules like the transparency rule) leaves BIAS providers with leeway in 
the details of how they go about complying with those obligations to a 
materially greater extent than the much more prescriptive 2016 rules.
    345. In addition, the Commission Order effectuating the 2017 
Resolution of Disapproval explicitly recognized that BIAS providers 
would ``remain subject to Section 222'' itself. As such, we reject 
assertions that the Commission may not have authorization to apply 
section 222 to BIAS providers because Congress overturned the 2016 
rules implementing section 222 with respect to BIAS. Thus, even at the 
time of the 2017 Resolution of Disapproval, the Commission saw no 
inconsistency between that resolution and the application of the 
statutory requirements of section 222. As such, we reject arguments 
that this document's classification is contrary to Congress's 
disapproval to the 2016 Privacy Order in 2017.

[[Page 45478]]

    346. We nevertheless find it appropriate to waive the rules 
implementing section 222 to the extent such rules are applicable to 
BIAS as a telecommunications service by virtue of the Order. The 
Commission may waive its rules and requirements for ``good cause 
shown.'' Good cause, in turn, may be found ``where particular facts 
would make strict compliance inconsistent with the public interest.'' 
In making this determination, the Commission may ``take into account 
considerations of hardship, equity, or more effective implementation of 
overall policy,'' and if ``special circumstances warrant a deviation 
from the general rule and such deviation will serve the public 
interest.'' We observe that many of the Commission's current rules 
implementing section 222 were adopted to address specific concerns in 
the voice context, as the Commission recognized in 2015 when initially 
reclassifying broadband as a Title II telecommunications service. 
Additionally, there is nothing in the record to indicate that the 
current rules implementing section 222 would be a good fit for BIAS to 
the extent that they impose more specific requirements than section 222 
itself. Thus, insofar as rules focused on addressing problems in the 
voice service context are among the central underpinnings of our CPNI 
rules, we find the public interest better served by waiving all of our 
CPNI rules at this time, insofar as they would apply to BIAS, to give 
us the opportunity to carefully evaluate appropriate rules for BIAS, 
particularly given the need to consider the effect of the Resolution of 
Disapproval. As the Commission explained in 2015, it is within the 
agency's discretion to proceed incrementally, and we similarly find 
that adopting an incremental approach here ``guards against any 
unanticipated and undesired detrimental effects on broadband deployment 
that could arise.'' We find that requiring BIAS providers to comply 
with section 222, while at the same time waiving application of our 
voice-specific rules, will allow providers the flexibility to adopt 
security practices that are effective and appropriate in the BIAS 
context, enhancing protections for customers without placing undue 
costs on providers, including small providers. As discussed above, we 
continue to apply section 222 of the Act itself, as well as section 
201(b)'s prohibition on practices that are unjust or unreasonable, 
which also provides authority over privacy practices.
6. Access to Poles, Ducts, Conduit, and Rights-of-Way (Section 224)
    347. We do not forbear from section 224 and the Commission's 
associated rules with respect to BIAS. Section 224 governs the 
Commission's regulation of pole attachments. It authorizes the 
Commission to prescribe rules to ensure that the rates, terms, and 
conditions of pole attachments are just and reasonable; requires 
utilities to provide nondiscriminatory access to their poles, ducts, 
conduits, and rights-of-way to telecommunications carriers and cable 
television systems (collectively, attachers); provides procedures for 
resolving pole attachment complaints; governs pole attachment rates for 
attachers; and allocates make-ready costs among attachers and 
utilities. The Act defines a utility as a ``local exchange carrier or 
an electric, gas, water, steam, or other public utility, . . . who owns 
or controls poles, ducts, conduits, or rights-of-way used, in whole or 
in part, for any wire communications.'' However, for purposes of pole 
attachments, a utility does not include any railroad, cooperatively-
organized entity, or entity owned by a Federal or State government. 
Section 224 excludes ILECs from the meaning of the term 
``telecommunications carrier.'' Therefore, these entities do not have a 
mandatory access right under section 224(f)(1). The Commission has held 
that when ILECs obtain access to poles, section 224 governs the rates, 
terms, and conditions of those attachments. The Act allows utilities 
that provide electric service to deny access to their poles, ducts, 
conduits, or rights-of-way because of ``insufficient capacity and for 
reasons of safety, reliability and generally applicable engineering 
purposes.'' The Commission has recognized repeatedly the importance of 
pole attachments to the deployment of communications networks, and pole 
attachments remain critical to the development of communications 
networks. Indeed, section 224 is critical to certain carriers' ability 
to comply with the deployment obligations associated with their receipt 
of Federal funding.
    348. As explained above, applying section 224 to BIAS will ensure 
that BIAS-only providers receive the same statutory protections for 
pole attachments guaranteed by section 224 of the Act that providers of 
cable and telecommunications services receive, thereby promoting 
greater deployment, competition, and availability of BIAS. Instead of 
being forced to privately negotiate for pole access with each pole 
owner, BIAS-only providers will be statutorily guaranteed a right of 
nondiscriminatory access and will also be entitled by statute to the 
same rates as their competitors. As we noted above, BIAS-only providers 
face ``significant barriers to deploy broadband network 
infrastructure--among them access to poles, ducts, and conduit.'' 
Section 224 seeks to remove these barriers by guaranteeing providers 
access to utility poles at just and reasonable rates. We reiterate our 
findings from above that restoring section 224 rights and easing the 
burdens of pole access is likely to ensure that the number of BIAS-only 
providers does not artificially shrink due to inequitable treatment 
under the law, and that equitable regulatory treatment of BIAS-only 
providers, particularly with regard to regulations designed to speed 
network deployment, will also increase competition, ultimately 
benefitting consumers and assisting the Commission's goal of achieving 
universal service. Further, as discussed above, applying section 224 to 
BIAS will ensure that the Commission and State utility commissions have 
the requisite legal authority to protect public safety concerns 
associated with the deployment of BIAS-only infrastructure.
    349. Consistent with our findings in the 2015 Open Internet Order, 
we thus conclude that applying these provisions will help ensure just 
and reasonable rates for BIAS by continuing pole access and thereby 
limiting the input costs that BIAS providers otherwise would need to 
incur. Leveling the pole attachment playing field for new entrants that 
offer solely BIAS also removes barriers to deployment and fosters 
additional broadband competition. For similar reasons, we find that 
applying these provisions will protect consumers and advance the public 
interest, and therefore the requirements for forbearance under sections 
10(a)(2) and (a)(3) are not met.
7. Universal Service
    350. We find the statutory test is met for certain forbearance 
under section 10(a) from applying portions of sections 254(d), (g), and 
(k), as discussed below, but we otherwise will apply section 254, 
section 214(e), and our implementing rules with respect to BIAS, as 
supported by a number of commenters. section 254, the statutory 
foundation of our universal service programs, requires the Commission 
to promote universal service goals, including ``[a]ccess to advanced 
telecommunications and information services . . . in all regions of the 
Nation.'' Section 214(e) provides the framework for determining which

[[Page 45479]]

carriers are eligible to participate in universal service programs. 
More specifically, an entity must be designated an eligible 
telecommunications carrier (ETC) under section 214(e) in order to get 
High Cost or Lifeline program support, but the same constraint does not 
apply with respect to receipt of support under the E-Rate or Rural 
Health Care programs. As discussed in greater detail above, the 
Commission already exercises its authority to support broadband 
services to schools, libraries, and health care providers and to 
support deployment of broadband-capable networks in high-cost areas. 
BIAS is a key focus of those universal service policies, and 
classification in the Order simply provides another statutory 
justification in support of these policies going forward. Even assuming 
arguendo that section 706 of the 1996 Act may also enhance the 
Commission's ability to achieve its universal service policies in 
certain targeted ways, the likely limits of that authority mean that we 
are not persuaded simply to rely on section 706 of the 1996 Act in lieu 
of section 254. Under our broader section 10(a)(3) public interest 
analysis, the historical focus of our universal service policies on 
advancing end users' access to BIAS persuades us that strengthening the 
foundation of our universal service activities is justified and will 
have limited impact on BIAS providers. Because forbearance would not be 
in the public interest under section 10(a)(3), we generally apply 
sections 254 and 214(e), and our implementing rules, to BIAS.
    351. However, we find it appropriate--as the Commission previously 
found in 2015--to forbear from the first sentence of section 254(d) and 
our associated rules insofar as they would immediately require new 
universal service contributions to be assessed on broadband internet 
access service to end users. In addition, pursuant to our forbearance 
from section 254(d) to maintain the status quo for contributions based 
on the provision of BIAS, and consistent with the 2015 Open Internet 
Order, we maintain the status quo with respect to states' ability to 
impose state-level contribution obligations on the provision of BIAS 
for State universal service programs. The first sentence of section 
254(d) states that ``[e]very telecommunications carrier that provides 
interstate telecommunications services shall contribute, on an 
equitable and nondiscriminatory basis, to the'' USF. In the 2015 Open 
Internet Order, however, the Commission ``forb[ore] in part from the 
first sentence of section 254(d) and our associated rules insofar as 
they would immediately require new universal service contributions 
associated with [BIAS].'' The Commission stated that, as with 
forbearance from requiring new TRS contributions, forbearing from 
requiring new universal service contributions to be assessed on BIAS 
would permissibly `` `balance the future benefits' of encouraging 
broadband deployment `against [the] short term impact' from'' 
forbearing from immediate new contribution assessments. The Commission 
also pointed to other parallel proceedings, both before the Commission 
and before other bodies, examining ``a wide range of issues regarding 
how contributions should be assessed, including whether to continue to 
assess contributions based on revenues or to adopt alternative 
methodologies for determining contribution obligations.'' The 
Commission thus determined to ``forbear[ ] from applying the first 
sentence of section 254(d) and our implementing rules insofar as they 
would immediately require new universal service contributions for 
[BIAS] but not insofar as they authorize the Commission to require such 
contributions in a rulemaking in the future.''
    352. We agree with commenters who say that the Universal Service 
Fund helps to protect consumers and to ensure that communications 
services are available to all Americans on just and reasonable rates 
and terms, and indeed for that reason we have found it important to 
reclassify BIAS as a Title II telecommunications service to ensure that 
we can continue to support the availability and affordability of BIAS 
through USF programs. But the record does not show that assessing new 
USF contribution requirements on BIAS is necessary for the Universal 
Service Fund to fulfill those goals at this time. On the contrary, the 
Universal Service Fund has been funding broadband access and 
affordability for well over a decade without imposing contribution 
requirements on BIAS providers. And the record does not show that 
anything would substantially change in that regard without imposing 
contribution requirements on BIAS. In fact, the Universal Service Fund 
successfully operated under a materially identical set of contribution 
and support schemes throughout the time that the 2015 Open Internet 
Order was in effect. To be sure, several commenters contend that it 
would be preferable to expand the contribution base to include BIAS, or 
that doing so might become necessary in the future, but the record does 
not convincingly show that imposing universal service contribution 
requirements on BIAS is necessary at this time.
    353. We conclude that forbearing from imposing new universal 
service contribution requirements on BIAS at this time is in the public 
interest. Others disagree with this proposal, primarily arguing that 
not forbearing from section 254(d) and our implementing rules would 
abandon a much-needed expansion of contributors, decrease the 
contribution amount for each provider, increase the size of the USF, 
complicate future USF reform, and/or be an unnecessary step toward 
precluding BIAS providers from assessment. For one thing, we agree with 
commenters who warn that suddenly and unnecessarily imposing new fees 
on BIAS could pose ``major upheaval in what is actually a stable and 
equitable contribution system.'' Rather than risk this upheaval, we 
believe it to be in the public interest to proceed cautiously and 
incrementally. The Commission thus recognized in 2015 that it is 
appropriate to forbear from extending new contribution requirements to 
BIAS pending ongoing deliberations, both before the Commission and 
before other bodies, on future USF contribution reform. Contrary to the 
assumption of some commenters, Commission efforts remain ongoing in 
this area. In the Luj[aacute]n Letter, Chairwoman Rosenworcel stressed 
that ``[t]here are a number of potential options for reforming the USF 
contribution system, each with advantages and disadvantages, and, 
critically, different cost burdens on consumers . . . . Nonetheless, 
any reform efforts would benefit from further inquiry, such as a 
rulemaking or data collection, to fully appreciate the potential 
burdens on consumers and any other unforeseen, negative downstream 
effects.'' She added that any such effort ``must result in a 
sustainable funding model and also fully consider the current 
telecommunications marketplace and the potential cost burdens on 
consumers.'' Several commenters also suggested that the Commission 
should seek and obtain statutory authority to assess edge providers, 
while another stressed that assessing edge providers ``would undermine 
the ultimate goal of universal connectivity by imposing new fees on the 
very services that drive consumers to seek broadband connections in the 
first place.'' Congress has also been actively deliberating on 
legislative proposals to reform the USF

[[Page 45480]]

contribution and funding mechanisms. USF contribution reform is an 
immensely complex and delicate undertaking with far-reaching 
consequences, and we believe that any decisions on whether and how to 
make BIAS providers contribute to the USF are best addressed 
holistically in those ongoing discussions of USF contribution reform, 
with a full record and robust input from all interested parties, rather 
than in this proceeding.
    354. Forbearance will also serve the important public interest 
goals of broadband access and affordability. As always, we are mindful 
of section 706's directive to ``encourage the deployment on a 
reasonable and timely basis of advanced telecommunications capability 
to all Americans . . . by utilizing . . . regulatory forbearance.'' 
That directive is echoed in the universal service principles set forth 
in section 254(b) of the Act, which include ``access . . . in all 
regions of the Nation'' at ``just, reasonable, and affordable rates.'' 
Here, estimates show that assessing contribution requirements on BIAS 
could result in a material increase in consumer broadband bills, 
potentially in the range of roughly $5 to $18 per month. ``The monthly 
household payment would increase, even though the contribution factor 
would decrease, because the contribution factor would be applied for 
the first time to customer broadband bills (in addition to telephone 
bills) which are generally higher than telephone bills.'' INCOMPAS 
disputes these figures, citing materials that it has previously 
submitted to the Commission, including materials fully considered in 
the Future of USF Report. We decline to revisit those figures here 
without a fully updated record and comprehensive input from a full 
array of interested parties. Indeed, INCOMPAS itself acknowledges ``the 
need to develop a fuller record on contribution reform.'' Our 
forbearance preserves for now the longstanding status quo in this 
complex and developing area. The impact of those additional fees is 
likely to be highly regressive, with a disproportionate impact on low-
income consumers who may be particularly sensitive to price increases. 
Although price-cap and rate-of-return carriers cannot pass through 
universal service contributions to Lifeline customers, that does not 
account for the many other BIAS providers or the low-income consumers 
that might not be formally identified as ILEC Lifeline recipients. 
Imposing new contribution requirements on BIAS could therefore be 
detrimental to the goal of promoting broadband adoption and 
affordability. For these reasons, as with our forbearance from TRS 
contribution requirements, we deem it appropriate and in the public 
interest to forbear from the imposition of new contribution 
requirements on BIAS at this time.
    355. We are not persuaded that allowing BIAS providers to continue 
to forgo USF contributions would be contrary to section 254(d)'s 
requirement that providers contribute ``on an equitable and 
nondiscriminatory basis'' even if we were not forbearing from that 
requirement. Forbearance essentially maintains the longstanding status 
quo. Under the final sentence of section 254(d), the Commission has had 
discretion to impose contribution requirements on BIAS providers even 
under Title I, but no one has argued it is unlawful not to do so. 
Arguments by commenters that forbearance from contribution requirements 
would improperly permit BIAS providers to receive USF support without 
having to contribute likewise neglect that operation of our current 
contribution rules. Our rules generally permit carriers to recoup their 
universal service contributions from their customers through surcharges 
on customers' monthly bills, so most of the burden ultimately falls on 
end users. Given estimates that extending the contribution requirements 
to BIAS could considerably increase consumers' broadband bills and 
would require residential consumers to bear a much greater share of the 
burden relative to business users, forbearing from new contribution 
requirements may be more equitable. And in any event, we do not think 
it inequitable to forbear from imposing new and unnecessary costs on 
BIAS when seeking to promote universal broadband availability, while 
requiring contributions from more mature services that have already 
achieved near-universal penetration. We are likewise unpersuaded by 
claims that forbearance would give BIAS a competitive advantage over 
non-BIAS services. It is not evident that BIAS and non-BIAS services 
are generally competitive substitutes even if there is limited evidence 
of substitution in some instances, or that USF fees have enough of a 
price impact to give rise to significant or widespread substitution. In 
any event, this issue would be better raised and addressed as part of a 
broader holistic proceeding on USF contribution reform, based on a full 
record and full input on all relevant issues, than in this proceeding.
    356. We caution, as the Commission did in 2015, that our 
determination to forbear at this time is based on the present record in 
a complex and developing area. We do not disclaim our authority to 
require new universal service contributions in a future rulemaking, and 
our decision in the Order is not intended to prejudge or limit how the 
Commission might take action in the future. Some commenters express 
concern that ``it will be difficult, if not impossible, to `unforbear' 
'' from the contributions-related forbearance that applies in this 
context. We find that this concern is unfounded. It is appropriate for 
the Commission to reverse a forbearance decision if ``[c]ontinued 
forbearance from this regulation would be inconsistent with the 
statutory forbearance criteria'' and the Commission has done so 
previously. We are confident that, if any future USF contribution 
reform renders continued forbearance from BIAS USF assessments 
inconsistent with statutory forbearance criteria, the Commission could 
and would reverse that grant of forbearance.
    357. Some commenters contend that the Commission could refrain from 
assessing BIAS providers for USF contributions without forbearing by 
instead ``clarify[ing] that it will pause from immediately enforcing 
the statute and that BIAS providers are not required to include those 
revenues until the Commission moves to Order on that contribution 
reform.'' However, we explain above why the forbearance standard is met 
and why we find it in the public interest under that standard to rely 
on the Commission's well-established statutory forbearance authority to 
ensure that BIAS providers are not immediately assessed contributions. 
We therefore decline WTA--Advocates for Rural Broadband's (WTA) request 
to delete any discussion of section 254(d) forbearance until a 
rulemaking is conducted. Moreover, the Commission's waiving the 
application of Sec.  54.706 of its rules for BIAS providers as some 
commenters propose as an alternative to forbearance would not alter the 
Commission's underlying statutory obligation under section 254(d). We 
therefore decline to adopt a different approach. Section 254(d) directs 
the Commission to establish mechanisms--including contribution 
requirements--to preserve and advance universal service. Some 
commenters attempt to rely on various precedents to argue that section 
254(d) is not ``self-effectuating.'' We find that the examples cited--
the initial implementation of section 254, the assessment of wireless 
voice providers, the assessment of VoIP providers, and the brief period 
of assessment of wireline BIAS providers--are inapposite and are not

[[Page 45481]]

germane as to whether the statute is self-effectuating. Indeed, these 
examples are not analogous to the assessment of contributions for BIAS 
providers because the wireless providers in questions were in fact 
required to contribute to the USF immediately pending the development 
of a Commission-specified allocation methodology; the VoIP providers 
were assessed based on permissive, not mandatory, authority; and the 
2005 wireline BIAS providers were subject to an existing contribution 
methodology on a time-limited basis to maintain the status quo. Notably 
in this case, the Commission already has established requirements that, 
by their terms, would require contributions on BIAS revenues if they 
immediately applied.
    358. We also forbear from applying section 254(g) and (k) and our 
associated rules. Section 254(g) requires ``that the rates charged by 
providers of interexchange telecommunications services to subscribers 
in rural and high-cost areas shall be no higher than the rates charged 
by each such provider to its subscribers in urban areas.'' Section 
254(k) prohibits the use of revenues from a non-competitive service to 
subsidize a service that is subject to competition. As with the 2015 
Open Internet Order, we are not persuaded that applying these 
provisions is necessary for purposes of section 10(a)(1) and (a)(2), 
particularly given the availability of the core BIAS requirements. By 
``core BIAS requirements,'' we mean the provisions of the Act and 
regulations expressly excluded from the scope of forbearance under the 
Order, along with section 706 of the 1996 Act, and our Open Internet 
rules. Likewise, under the tailored regulatory approach we find 
warranted here, informed by our responsibilities under section 706, we 
conclude that forbearance from enforcing section 254(g) and (k) is in 
the public interest under section 10(a)(3). Forbearance from section 
254(g) also is consistent with our commitment to forbear from all 
provisions that would permit rate regulation of BIAS. We also note that 
comments addressing section 254 appear focused on provisions regarding 
universal service support for BIAS networks and universal service 
contributions, addressed above, and not on the requirements of section 
254(g) and (k) and our implementing rules. We thus forbear from 
applying these provisions insofar as they would be newly triggered by 
the classification of BIAS in the Order. Nothing in our forbearance 
with respect to section 254(k) for BIAS is intended to encompass, 
however, situations where ILECs or other common carriers voluntarily 
choose to offer internet transmission services as telecommunications 
services subject to the full scope of Title II requirements for such 
services. As a result, such providers remain subject to the obligations 
that arise under section 254(k) and the Commission's rules by virtue of 
their elective provision of such services. For example, if a rate-of-
return incumbent LEC (or other provider) voluntarily offers internet 
transmission outside the forbearance framework adopted in the Order, it 
remains subject to the pre-existing Title II rights and obligations, 
including those from which we forbear in the Order.
8. Access for Persons With Disabilities (Sections 225, 255, and 
251(a)(2))
    359. We do not forbear from those provisions of Title II that 
ensure access to BIAS by individuals with disabilities. Consistent with 
our conclusion above that BIAS is essential, we find that all 
Americans, including those with disabilities, must be able to reap the 
benefits of an open internet. Application of sections 225, 255, and 
251(a)(2) is necessary to ensure access for these individuals, thereby 
protecting consumers and furthering the public interest.
    360. Section 225 mandates that telecommunications relay services be 
made available on an interstate and intrastate basis to individuals who 
are deaf, hard of hearing, deafblind, and who have speech disabilities 
in a manner that is ``functionally equivalent to the ability of a 
hearing individual who does not have a speech disability to communicate 
using voice communication services by wire or radio.'' To achieve this, 
the Commission has required all interstate service providers (other 
than one-way paging services) to provide TRS. People who are deaf, hard 
of hearing, deafblind, and who have speech disabilities increasingly 
rely upon internet-based video communications, both to communicate 
directly (point-to-point) with other persons who are deaf or hard of 
hearing who use sign language and through video relay service with 
individuals who do not use the same mode of communication that they do. 
VRS is a form of TRS that allows people who are blind, hard of hearing, 
deafblind, and who have speech disabilities who use sign language to 
communicate with voice telephone users through a communications 
assistant using video transmissions over the internet. In addition, 
these populations rely on other forms of internet-based TRS, including 
Internet Protocol Relay Service (IP Relay) and Internet Protocol 
Captioned Telephone Service (IP CTS). IP Relay is a 
``telecommunications relay service that permits an individual with a 
hearing or a speech disability to communicate in text using an Internet 
Protocol-enabled device via the internet, rather than using a text 
telephone (TTY) and the public switched telephone network.'' IP CTS is 
a ``telecommunications relay service that permits an individual who can 
speak but who has difficulty hearing over the telephone to use a 
telephone and an Internet Protocol-enabled device via the internet to 
simultaneously listen to the other party and read captions of what the 
other party is saying.'' In using these forms of video communications, 
they rely on high definition two-party or multiple-party video 
conferencing that necessitates a broadband connection. Indeed, the 
Commission recognized the increased importance for persons with 
disabilities to have access to video conferencing services that arose 
during the COVID-19 pandemic and its aftermath.
    361. Section 225 is forward-looking and requires the Commission to 
adopt TRS regulations that encourage the use of existing technologies 
and not discourage or impair the development of new technologies. As 
technology advances, the obligations of section 225 carry forward to 
ensure the Commission makes available to all individuals in the United 
States a rapid, efficient, nationwide communications service. For 
example, in 2007, the Commission extended the application of section 
225 requirements to interconnected VoIP providers, relying at the time 
on its ancillary authority to the Commission's to carry out the 
purposes established under section 1 of the Act, make available to all 
individuals in the United States a rapid, efficient nationwide 
communication service, and increase the utility of the telephone 
system. The Commission also relied on an express authority under 
section 225(d)(3)(B) to issue regulations that ``shall generally 
provide that costs caused by interstate relay services shall be covered 
from all subscribers for every interstate service'' to require VoIP 
providers to contribute to the TRS fund. Congress, in the CVAA, 
subsequently codified the obligations of interconnected and non-
interconnected VoIP providers to contribute to the TRS fund. Limits 
imposed on bandwidth use through network management practices that 
might otherwise appear neutral, could have an adverse effect on 
internet-based TRS users who use sign language to communicate by 
degrading the

[[Page 45482]]

underlying service carrying their video communications. This result 
could potentially deny these individuals access to a functionally 
equivalent communications service. Additionally, if VRS and other 
internet-based TRS users are limited in their ability to use BIAS or 
are assessed extra costs for BIAS in order to access or use internet-
based TRS or point-to-point services, this could cause discrimination 
against them because for many such individuals, TRS is the only form of 
communication that affords service that is functionally equivalent to 
what voice users have over the telephone. Moreover, limiting their 
bandwidth capacity could compromise their ability to obtain access to 
emergency services via VRS and other forms of internet-based TRS, which 
is required by the Commission's rules implementing section 225.
    362. As emphasized in the 2015 Open Internet Order, section 225 is 
important not only as a basis for future rules adopting additional 
protections but also to clarify internet-based TRS providers' 
obligations under existing rules. To be compensated from the TRS fund, 
providers' services must comply with section 225 and the Commission's 
TRS rules and orders. A number of IP-based TRS services are delivered 
through users' broadband internet access services. Forbearing from 
applying section 225 and our TRS service requirements would risk 
creating loopholes in the protections otherwise afforded to users of 
internet-based TRS services, or even just uncertainty that might result 
in degradation of these services. More specifically, if we were to 
forbear from applying these provisions, we run the risk of allowing 
actions taken by BIAS providers to come into conflict with the 
overarching goal of section 225, i.e., ensuring that communication 
services made available through TRS are functionally equivalent, that 
is, mirror as closely as possible the voice communication services 
available to the general public. Enforcement of this functional 
equivalency mandate will protect against such degradation of service. 
In sum, we find that the enforcement of section 225 is necessary for 
the protection of consumers, and that forbearance would not be in the 
public interest.
    363. Notwithstanding the foregoing, we forbear at this time, for 
reasons similar to those discussed above relating to our forbearance of 
universal service contributions for BIAS providers, from the 
application of TRS fund contribution obligations that otherwise would 
newly apply to BIAS. We find that applying new TRS fund contribution 
requirements at this time is not necessary to ensure just, reasonable, 
and nondiscriminatory conduct by BIAS providers or for the protection 
of consumers under section 10(a)(1) and (a)(2) and that forbearance is 
in the public interest under section 10(a)(3). We limit our action only 
to forbearing from applying section 225(d)(3)(B) and our implementing 
rules insofar as they would immediately require new TRS fund 
contributions from BIAS providers. We reserve the ability to conduct a 
future rulemaking to require such contributions in the event future 
developments necessitate such action. Before adopting any TRS-related 
contributions requirements, the Commission would assess the need for 
such funding, and the appropriate contribution level, given the 
totality of concerns implicated in this context.
    364. Consistent with the Commission's approach in 2015, nothing in 
our forbearance from TRS fund contribution requirements for BIAS is 
intended to encompass situations when ILECs or other common carriers 
voluntarily choose to offer internet transmission services as 
telecommunications services subject to the full scope of Title II 
requirements for such services. As a result, such providers remain 
subject to the TRS fund contribution obligations that arise under 
section 225 and the Commission's rules by virtue of their elective 
provision of such services until such time as the Commission further 
addresses such contributions in the future.
    365. Further, with respect to BIAS, we do not forbear from applying 
sections 255 and 251(a)(2), and the associated rules, that require 
telecommunications carriers and equipment manufacturers to make their 
services and equipment accessible to individuals with disabilities, 
unless not readily achievable, and preclude the installation of 
``network features, functions, or capabilities that do not comply with 
the guidelines and standards established pursuant to section 255.'' In 
prior proceedings, the Commission has emphasized its commitment to 
implementing the important policy goals of section 255 in the internet 
access service context. Commenters have noted that broadband adoption, 
while growing, still lags among certain groups, including individuals 
with disabilities. Adoption of BIAS by persons with disabilities can 
enable these individuals to achieve greater productivity, independence, 
and integration into society in a variety of ways. These capabilities, 
however, are not available to persons with disabilities if they face 
barriers to BIAS usage, such as inaccessible hardware, software, or 
services. We anticipate that increased adoption of services and 
technologies accessible to individuals with disabilities will, in turn, 
spur further availability of such capabilities, and of BIAS deployment 
and usage more generally.
    366. Our forbearance analysis regarding sections 255 and 251(a)(2), 
and our implementing rules, is also informed by the incremental nature 
of the requirements imposed. The CVAA addressed advanced communication 
services (regardless of their regulatory classification) to ensure that 
such products and services are accessible to persons with disabilities, 
unless it is not achievable to do so. While the CVAA permits the 
Commission to adopt regulations that networks used to provide advanced 
communications services ``may not impair or impede the accessibility of 
information content when accessibility has been incorporated into that 
content for transmission,'' such provisions alone do not help the 
Commission ensure that BIAS is accessible to people with disabilities.
    367. As explained above, we find the provisions of the CVAA, while 
significant, are not sufficient protections in the context of BIAS, 
despite the claims of several commenters. Insofar as sections 255, 
251(a)(2), and our implementing rules impose different requirements 
that are reconcilable with the CVAA, we find it appropriate to apply 
those additional protections in the context of BIAS for the reasons 
described above. For example, providers of BIAS must ensure that 
network services and equipment do not impair or impede accessibility 
pursuant to the sections 255 and 251(a)(2) framework. Because this 
section requires pass through of telecommunications in an accessible 
format, and 47 CFR 14.20(c) requires pass through of advanced 
communications services in an accessible format, the two sections work 
in tandem with each other, and forbearance from sections 255 and 
251(a)(2) would therefore result in a diminution of accessibility. In 
particular, we find that these provisions and regulations are necessary 
for the protection of consumers and forbearance would not be in the 
public interest. We recognize that the Commission previously has held 
that section 2(a) of the CVAA exempts entities, such as internet 
service providers, from liability for violations of section 716 when 
they are acting only to transmit covered services or to

[[Page 45483]]

provide an information location tool. Thus, service providers that 
merely provide access to an electronic messaging service, such as a 
broadband platform that provides an end user with access to a web-based 
email service, are excluded from the accessibility requirements of 
section 716. Our decision here is not at odds with Congress's approach 
to such services under the CVAA, however, because we also have found 
that ``relative to section 255, section 716 requires a higher standard 
of achievement for covered entities.'' Thus, under our decision here, 
BIAS will remain excluded from the ``higher standard of achievement'' 
required by the CVAA to the extent provided by that law, and instead 
will be subject to the lower standard imposed under section 255 in 
those cases where the CVAA does not apply.
9. Other Title II Provisions
    368. We adopt our proposal to not grant forbearance to the extent 
it was considered and rejected for particular statutory provisions in 
the 2015 Open Internet Order. The record does not reflect that the 
Commission's forbearance criteria or analyses must be updated with 
regard to these obligations, and no commenter suggests we should 
forbear from these provisions. Specifically, we do not forbear from 
section 257 of the Act and provisions insofar as they only reserve 
State or local authority, as these provisions impose certain 
obligations on the Commission without creating enforceable obligations 
that the Commission would apply to telecommunications carriers or 
telecommunications services. Section 257 also may enhance public safety 
by giving the Commission additional authority to address outage 
reporting requirements. We also decline requests to forbear from 
applying sections 253 and 332(c), which provide us authority to preempt 
State and local requirements, which is consistent with the preemption 
approach we articulate in the Order, and we therefore find it is in the 
public interest to continue applying those provisions. Additionally, 
for the reasons fully elaborated on in the 2015 Open Internet Order, we 
decline to forbear from the CALEA requirements in section 229. To the 
extent we do not forbear from these or any other provisions or 
regulations, BIAS providers remain free to seek relief from such 
provisions or regulations through appropriate filings with the 
Commissions.
    369. We also similarly do not forbear from applying Title II 
provisions that could be viewed as a benefit to BIAS providers, such as 
sections 223, 230(c), and 231. Section 230(c) was not covered by the 
scope of forbearance in the 2015 Open Internet Order because ``its 
application does not vary based on the classification of BIAS here.'' 
Since section 230(c)'s application has not changed since the Commission 
adopted the 2015 Open Internet Order, the Commission again does not 
forbear. Similarly, applying sections 223 and 231 (to the extent 
enforced) and their associated limitations on liability, still do not 
vary with BIAS's classification, and are not encompassed by the 
forbearance in the Order. Many of the relevant provisions in these 
sections stem from the Child Online Protection Act (COPA), which has 
been enjoined as unconstitutional. A Federal court held that COPA is 
unconstitutional and placed a permanent injunction against its 
enforcement, and that decision was affirmed on appeal. We also find 
that, to the extent that Title II provisions benefit BIAS providers and 
newly apply by virtue of reclassification, applying those provisions 
better serve the public interest because they promote broadband 
deployment.

C. Broad Forbearance From Other Title II Provisions for Broadband 
Internet Access Service

    370. Beyond the specific statutory provisions and regulations 
expressly excluded from forbearance as discussed above and in the 
sections below, we apply broad forbearance, to the full extent 
permitted by our authority under section 10 of the Act, from provisions 
of Title II of the Act and implementing Commission rules that would 
apply to BIAS by virtue of its classification as a Title II 
telecommunications service. We are persuaded that this forbearance is 
appropriate and in the public interest based on our predictive judgment 
regarding the adequacy of other protections where needed, the role of 
section 706 of the 1996 Act, and how we have tailored our forbearance 
to account for updated conclusions in this proceeding regarding the 
application of particular rules, requirements, and sources of authority 
to BIAS. The record also provides support for the forbearance approach 
we take here.
    371. Consistent with our analysis in 2015, we conclude that our 
analytical approach as to all the provisions and regulations from which 
we forbear in the Order is consistent with section 10(a). We also 
decline WISPA's request that we conduct a cost-benefit analysis of the 
imposition of Title II regulations in the context of deciding which 
regulations we should or should not forbear from. WISPA Comments at 60. 
This is unnecessary, as we find that our forbearance is in the public 
interest and is consistent with 10(a) analysis. Under section 10(a)(1), 
we consider here whether particular provisions and regulations are 
``necessary'' to ensure ``just and reasonable'' conduct by BIAS 
providers. In interpreting that terminology, we conclude that we 
reasonably can account for policy trade-offs that can arise under 
particular regulatory approaches, as discussed above. While the 
specific balancing at issue in EarthLink v. FCC may have involved 
trade-offs regarding competition, we nonetheless believe the view 
expressed in that decision accords with our conclusion here that we 
permissibly can interpret and apply all the section 10(a) criteria to 
also reflect the competing policy concerns here. As the D.C. Circuit 
also has observed, within the statutory framework that Congress 
established, the Commission ``possesses significant, albeit not 
unfettered, authority and discretion to settle on the best regulatory 
or deregulatory approach to broadband.'' For one, we find it reasonable 
in the BIAS context for our interpretation and application of section 
10(a)(1) to be informed by section 706 of the 1996 Act. Given the 
characteristics specific to BIAS that we find on the record here--
including, among other things, protections from the newly adopted open 
internet rules and the overlay of section 706--we limit our forbearance 
from the relevant provisions and regulations to the context of BIAS. 
Outside that context, they will continue to apply as they have 
previously, unaffected by the Order. As discussed above, section 706 of 
the 1996 Act ``explicitly directs the FCC to `utiliz[e]' forbearance to 
`encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans,' '' and our recent 
negative section 706(b) determination triggers a duty under section 706 
for the Commission to ``take immediate action to accelerate 
deployment.'' As discussed in greater detail below, a tailored 
regulatory approach avoids disincentives for broadband deployment, 
which we weigh in considering what outcomes are just and reasonable--
and whether the forborne-from provisions are necessary to ensure just 
and reasonable conduct--under our section 10(a)(1) analyses in this 
item. Furthermore, our forbearance in the Order, informed by past 
experience and the record in this proceeding, reflects the recognition 
that, beyond the specific provisions from which we decline to forbear 
above and

[[Page 45484]]

the bright-line open internet rules we adopt below, particular conduct 
by a BIAS provider can have mixed consequences, rendering a case-by-
case evaluation superior to bright-line rules. Consequently, based on 
those considerations, we predict that, outside the authority we retain 
and the rules we apply in the Order, just and reasonable conduct by 
BIAS providers is better ensured under section 10(a)(1) by the case-by-
case regulatory approach we adopt--which enables us to account for the 
countervailing policy implications of given conduct--rather than any of 
the more bright-line requirements that would have flowed from the 
provisions and regulations from which we forbear. As explained above, 
we conclude that while competition can be a sufficient basis to grant 
forbearance, it is not inherently necessary to find section 10 
satisfied. These same considerations underlie our section 10(a)(2) 
analyses as well, since advancing BIAS deployment and ensuring 
appropriately nuanced evaluations of the consequences of BIAS provider 
conduct better protects consumers. Likewise, these same policy 
considerations are central to the conclusion that the forbearance 
granted in the Order, against the backdrop of the protections that 
remain, best advance the public interest under section 10(a)(3).
    372. The Commission's practical experience with the classification 
of BIAS informs our section 10(a) analysis for the remaining statutory 
and regulatory obligations triggered by classifying BIAS as a Title II 
telecommunications service. Although practical experience in and of 
itself does not resolve the appropriate regulatory treatment of BIAS, 
it suggests that our approach guards against undue burden that could 
hinder BIAS deployment or otherwise be contrary to the public interest. 
We are not persuaded by arguments to the contrary, nor that we should 
not adopt the regulatory framework in the Order because it will impose 
such high compliance costs on providers relative to the status quo from 
the near-term past. The record reflects that providers were not 
deterred from network investment after the Commission adopted a similar 
regulatory approach in the 2015 Open Internet Order and that some 
providers voluntarily continue to follow certain conduct rules. We note 
in this regard that when exercising its section 10 forbearance 
authority ``[g]uided by section 706,'' the Commission permissibly may 
``decide[ ] to balance the future benefits'' of encouraging broadband 
deployment ``against [the] short term impact'' from a grant of 
forbearance. Under the section 10(a) analysis, we are particularly 
persuaded to give greater weight to the likely benefits of proceeding 
cautiously given the speculative or otherwise limited nature of the 
arguments in the current record regarding the forbearance approach 
adopted here, which we discuss in greater detail below. Although we 
adopt firm forbearance from all direct rate regulation, with respect to 
other provisions from which we forbear here, we note that it also is 
within the Commission's discretion to proceed incrementally, and we 
find that adopting an incremental approach here--by virtue of the 
forbearance granted here--guards against any unanticipated and 
undesired detrimental effects on broadband deployment that could arise. 
While we find that the tailored regulatory framework we adopt in the 
Order strikes the right balance, we note that the D.C. Circuit has 
recognized the Commission's authority to revisit its decision should 
that prove not to be the case.
1. Rate Regulation (Sections 201 and 202)
    373. Although we conclude, as the Commission did in 2015, that the 
section 10 criteria are not met with respect to forbearance from 
section 201 and 202 in full, ``because we do not and cannot envision 
adopting new ex ante rate regulation'' or ex post rate regulation of 
BIAS beyond the scope of our open internet conduct rules in the future, 
we forbear from applying sections 201 and 202 to BIAS to the extent 
they would permit such regulation. Contrary to New America's Open 
Technology Institute's claim, our sections 201 and 202 forbearance with 
respect to rate regulation is consistent with the Commission's approach 
in 2015. In forbearing from sections 201 and 202 in this manner, we 
reiterate that states may have a role to play in promoting broadband 
affordability. Given the protection of our open internet rules, we do 
not find ex ante or ex post rate regulation necessary for purposes of 
section 10(a)(1) and (a)(2), and we find it in the public interest to 
forbear from applying sections 201 and 202 insofar as they would permit 
the adoption of such rate regulations for BIAS in the future. We 
therefore find to be unfounded claims that our refusal to forbear 
entirely from sections 201 and 202 means that the Commission could 
introduce rate regulation of BIAS despite our commitment not to do so.
2. Tariffing (Sections 203 and 204)
    374. We find the section 10(a) criteria met and forbear from 
applying section 203 of the Act insofar as it newly applies to BIAS 
providers by virtue of our classification of BIAS. Section 203 requires 
Title II common carriers to file a schedule of rates and charges for 
interstate common carrier services. We forbear from tariffing 
provisions because we predict that the other protections that remain in 
place are adequate to guard against unjust and unreasonable, and 
unjustly and unreasonably discriminatory, rates and practices in 
accordance with section 10(a)(1) and to protect consumers under section 
10(a)(2). We also conclude that those other protections reflect the 
appropriate calibration of regulation of BIAS at this time, such that 
forbearance is in the public interest under section 10(a)(3).
    375. We find that section 203's requirements are not necessary to 
ensure just and reasonable, and not unjustly or unreasonably 
discriminatory, rates and practices under section 10(a)(1) nor to 
protect consumers under 10(a)(2). Sections 201 and 202 of the Act, from 
which we do not forbear, and our open internet rules are designed to 
preserve and protect internet openness by prohibiting unjust and 
unreasonable, and unjustly or unreasonably discriminatory, conduct by 
BIAS providers for or in connection with BIAS, protecting the retail 
mass market customers of BIAS. In calibrating that legal framework, we 
considered, among other things, the operation of the marketplace in 
conjunction with those protections. This regulatory scheme is 
substantially similar to the one we used in the 2015 Open Internet 
Order, since there is no evidence that approach did not adequately 
protect the interests of consumers--including the interest in just, 
reasonable, and nondiscriminatory conduct--that might otherwise be 
threatened by the actions of BIAS providers. As such, we make the same 
finding in the Order. In the event that BIAS providers violate sections 
201 or 202 of the Act, the open internet rules, or any other BIAS 
requirements, they remain subject to complaints and Commission 
enforcement action.
    376. That the Commission has never before imposed tariffing 
requirements on BIAS as defined here also supports our section 10 
analysis. This practical experience informs what issues may arise with 
forbearance from tariffing requirements in this proceeding and 
underlies our prediction that the remaining rules and requirements are 
sufficient to fulfill the requirements under section 10. Additionally, 
our

[[Page 45485]]

forbearance from section 203 is consistent with our broad forbearance 
from all Title II provisions that could be used to impose ex ante or ex 
post rate regulation on BIAS providers, and we therefore make clear 
that we will not impose any such rate regulation nor any requirement of 
advanced Commission approval of rates and practices as otherwise would 
have been imposed under section 203 on BIAS providers.
    377. We find that forbearance from tariffing requirements for BIAS 
satisfies section 10(a)(1) and (a)(2) and is consistent with the public 
interest under section 10(a)(3) in light of the objectives of section 
706. As explained above, section 706 of the 1996 Act ``explicitly 
directs the FCC to `utiliz[e]' forbearance to `encourage the deployment 
on a reasonable and timely basis of advanced telecommunications 
capability to all Americans.' '' The D.C. Circuit has further held that 
the Commission ``possesses significant, albeit not unfettered, 
authority and discretion to settle on the best regulatory or 
deregulatory approach to broadband.'' We find that the scope of our 
adopted forbearance strikes the right balance at this time between, on 
the one hand, providing the regulatory protections clearly required by 
the evidence and our analysis to, among other things, guard the 
virtuous cycle of internet innovation and investment and, on the other 
hand, avoiding additional regulations that do not appear required at 
this time and that risk needlessly detracting from BIAS providers' 
broadband investments. We clarify that although we forbear from 
applying to BIAS section 203 and, as noted below, section 204, 
forbearing from tariffing does not limit the Commission's existing 
authority to study rates or competition.
    378. We also conclude that the public interest supports forbearing 
from tariffing requirements for BIAS under section 10(b)'s requirement 
that we analyze the impact forbearance would have on competitive market 
conditions. While we consider the section 10(b) criteria in our section 
10(a)(3) public interest analysis, our public interest determination 
rests on other grounds. In particular, under the entirety of our 
section 10(a)(3) analysis, as discussed above, we conclude that the 
public interest supports the forbearance adopted in the Order. These 
same section 10(b) findings likewise apply in the case of our other 
section 10(a)(3) public interest evaluations with respect to BIAS, and 
should be understood as incorporated there. Nonetheless, we also 
believe that our overall regulatory approach, viewed broadly, advances 
competition in important ways. The record reflects that competition is 
still limited, and does not provide a strong basis for concluding that 
the forbearance granted in the Order is likely to directly affect the 
competitiveness of the marketplace for BIAS. Our granted forbearance 
continues to be part of an overall regulatory approach designed to 
promote infrastructure investment in significant part by preserving and 
promoting innovation and competition at the edge of the network, and we 
similarly conclude that a grant of forbearance from section 203 
indirectly promotes market competition by enabling us to strike the 
right balance at this time in our overall regulatory approach.
    379. We disagree with Public Knowledge that we should not forbear 
from section 203 for BIAS because tariff filings ``provide consumers 
with the transparency necessary to protect their interests.'' The 
transparency rule and the broadband label requirements are designed to 
provide consumers with disclosures of BIAS providers' commercial terms, 
including rates, as well as a wide array of other information about 
their services, and Public Knowledge fails to explain why these 
requirements are insufficient to provide consumers with information 
they need to protect their interest. We are thus not persuaded to 
depart from our section 10(a) findings above regarding section 203.
    380. We also forbear from applying section 204 of the Act insofar 
as it newly applies to providers by virtue of our classification of 
BIAS. Section 204 provides for Commission investigation of a carrier's 
rates and practices newly filed with the Commission, and to order 
refunds, if warranted. Since we forbear from section 203's tariffing 
requirements, it is not clear what purpose section 204 would serve, and 
we thus apply our overarching section 10(a) forbearance analysis above 
to section 204. We decline Public Knowledge's suggestion that the 
Commission retain section 204. We are not persuaded by Public 
Knowledge's argument that ``[t]here appears to be no a priori reason to 
assume that the Commission can adequately protect consumers by 
disclaiming its authority to suspend unjust rates and practices 
(Section 204).'' Public Knowledge fails to explain why our remaining 
authority and regulations would be insufficient to protect consumers, 
or how section 204 would effectuate that purpose once we have forborne 
from applying section 203.
3. Enforcement-Related Provisions (Sections 205 and 212)
    381. We forbear from applying certain enforcement-related 
provisions of Title II to BIAS beyond the core Title II enforcement 
authority discussed above, and find this forbearance warranted under 
section 10(a). Section 205 provides for Commission investigation of 
existing rates and practices and to prescribe rates and practices if it 
determines that the carrier's rates or practices do not comply with the 
Communications Act. The Commission has forborne from enforcing section 
205 when it sought to adopt a tailored, limited regulatory environment 
and, notwithstanding that forbearance, sections 201 and 202 and other 
complaint processes continued to apply. The Commission previously 
forbore from enforcing section 205 in the 2015 Open Internet Order, 
finding that the core Title II enforcement authority, along with the 
ability to pursue claims in court, as discussed below, provide adequate 
enforcement options and the statutory forbearance test is met for 
section 205. Since we are adopting a substantially similar regulatory 
scheme as the 2015 Open Internet Order and there is no evidence that 
those enforcement options were inadequate, we make the same finding in 
the Order. Consistent with our analysis above, we predict that these 
provisions are not necessary to ensure just, reasonable, and 
nondiscriminatory conduct by providers of BIAS or to protect consumers 
under section 10(a)(1) and (a)(2). In addition, as above, under the 
tailored regulatory approach we find warranted here, informed by our 
responsibilities under section 706, we conclude that forbearance is in 
the public interest under section 10(a)(3). We thus reject claims that 
we should not forbear from section 205 insofar as it is triggered by 
our classification of BIAS. Public Knowledge requests that we not 
forebear from enforcing sections 205, 209, 206, 216-217, and 212 
because they provide consumers adequate remedies and the Commission the 
ability to hold providers accountable. But by Public Knowledge's own 
admission applying these provisions is unnecessary, as we ``arguably 
have similar authority under the broad grant of Sections 201 and 202 
and its general authority under Section 4(i)'' with regard to section 
205 and other provisions it requests that we not forebear from 
enforcement.
    382. We also forbear from applying section 212 to the extent that 
it newly applies by virtue of our classification of BIAS. Section 212 
empowers the Commission to monitor interlocking

[[Page 45486]]

directorates, i.e., the involvement of directors or officers holding 
such positions in more than one common carrier. The Commission has 
granted forbearance from section 212 in the CMRS context on the grounds 
that forbearance would reduce regulatory burdens without adversely 
affecting rates in the CMRS market. In so doing, the Commission noted 
that section 212 was originally placed in the Communications Act to 
prevent interlocking officers from engaging in anticompetitive 
practices, such as price fixing, but found protections of sections 
201(b) and 221 and antitrust laws were sufficient to protect consumers 
against the potential harms from interlocking directorates. (The 
Commission noted that section 221 provided protections against 
interlocking directorates, but section 221(a) was repealed in the 
Telecommunications Act of 1996. This section gave the Commission the 
power to review proposed consolidations and mergers of telephone 
companies. While section 221(a) allowed the Commission to bolster its 
analysis to forbear from section 212 in the Second CMRS Report and 
Order, the protections against interlocking directorates provided by 
section 201(b) and 15 U.S.C. 19 provide sufficient protection to 
forbear from section 212 for BIAS.) Forbearance also reduced an 
unnecessary regulatory cost imposed on carriers. The Commission later 
extended this forbearance to dominant carriers and carriers not yet 
found to be non-dominant, repealing part 62 of its rules and granting 
forbearance from the provisions of section 212. Since we are adopting a 
substantially similar regulatory scheme as the 2015 Open Internet Order 
and there is no evidence that other protections are not adequate, we 
make the same finding in the Order. We predict that other protections 
will adequately ensure just, reasonable, and nondiscriminatory conduct 
by BIAS providers and protect consumers here, and thus conclude that 
the application of section 212 is not necessary for purposes of section 
10(a)(1) or 10(a)(2). Moreover, as above, under the tailored regulatory 
approach we find warranted here, informed by our responsibilities under 
section 706, we conclude that forbearance is in the public interest 
under section 10(a)(3). We thus reject Public Knowledge's claim that we 
should not forbear from section 212 insofar as it is triggered by our 
classification of BIAS.
4. Information Collection and Reporting (Sections 211, 213, 215, and 
220(a)(2), (b), (f)-(j))
    383. Outside the national security and public safety context, which 
we discuss above, we forbear from applying information collection and 
reporting provisions of the Act insofar as they would newly apply by 
virtue of our classification of BIAS as a Title II telecommunications 
service. These provisions principally are used by the Commission to 
implement its traditional rate-making authority over common carriers. 
Since we are not applying tariffing requirements to BIAS nor engaging 
in ex ante or ex post rate regulation of BIAS, it is not clear what 
purpose these provisions would serve. The Commission also has 
undertaken the Broadband Data Collection and adopted broadband labeling 
requirements since the 2015 Open Internet Order, both of which empower 
consumers by providing them with greater transparency as to their 
broadband service and further suggest these information collection 
requirements are unnecessary. Given both our intention to tailor the 
regulations applicable to BIAS and our responsibility under section 706 
to encourage deployment, we conclude that forbearance of these 
information collection and reporting provisions is in the public 
interest under section 10(a)(3) and applying these sections is not 
necessary within the meaning of section 10(a)(1) and (a)(2).
    384. We disagree, in part, with Public Knowledge, which broadly 
argues that we should not forbear from sections 211, 213, 215, and 220. 
We also disagree with Public Knowledge that there is ``no reason to 
forbear simply for the sake of forbearing when a waiver will minimize 
any regulatory burden without depriving the Commission of useful tools 
for the future.'' We again note that while the Commission may waive its 
rules, it may not generally waive a provision of a statute. Forbearance 
is the mechanism for not applying statutory provisions when warranted. 
As discussed earlier, we retain sections 218 and 219, and certain 
provisions of section 220, which Public Knowledge also asserts should 
be excluded from forbearance, to ensure that the Commission has the 
ability to collect information and require reporting if necessary, 
including for national security and public safety purposes, and to 
ensure network resiliency. We conclude that excluding sections 218 and 
219, and the section 220 provisions from forbearance, as detailed 
above, ensures that the Commission can collect information necessary to 
carry out its duties with respect to the public interest. Public 
Knowledge does not name any uncollected information that would enhance 
our ``ability to make informed policy choices that promote the 
Congressional goals of ubiquitous, affordable deployment.''
5. Interconnection and Market-Opening Provisions (Sections 251, 252, 
and 256)
    385. We find the section 10 criteria met for forbearance from 
applying the interconnection and market-opening provisions in sections 
251 (other than sections 251(a)(2)), 252, and 256 to the extent that 
they would newly apply through the classification of BIAS as a Title II 
service. As a result of the forbearance granted from section 251, 
section 252 thus is inapplicable, insofar as it is simply a tool for 
implementing the section 251 obligations. Although we do not forbear 
from applying section 251(a)(2) with respect to BIAS, we note that the 
Commission previously has held that the procedures of section 252 are 
not applicable in matters simply involving section 251(a). To the 
extent that the Commission nonetheless could be seen as newly applying 
section 252 with respect to BIAS as a result of our classification 
decision here, we find the section 10 criteria met for forbearance from 
that provision for the same reasons discussed below with respect to 
section 251. Given otherwise-existing authority that we retain under 
our open internet rules and provisions of the Act from which we do not 
forbear, we find that there is no current Federal need for those 
provisions--and, indeed, that they would conflict with the regulatory 
approach to BIAS that we find most appropriate. Thus, applying those 
provisions of the Act is not ``necessary'' under section 10(a)(1) and 
(a)(2). For those same reasons, we also find that forbearance is in the 
public interest under section 10(a)(3). We note that the Commission has 
determined that section 251(c) has been fully implemented throughout 
the United States, and thus permissibly is within the scope of the 
Commission's section 10 forbearance authority.
    386. We begin by putting the key market-opening requirements of the 
sections 251 and 252 framework in their broader legal and regulatory 
context under current precedent (while saving discussion of the more 
limited role of section 256 for our targeted analysis of 
interconnection below). At a high level, section 251 provides a 
graduated set of interconnection requirements and other obligations 
designed to foster competition in telecommunications markets, 
particularly local markets. The

[[Page 45487]]

nature and scope of these obligations vary depending on the type of 
service provider involved.
     Section 251(a) sets forth general duties applicable to all 
telecommunications carriers, including the section 251(a)(1) duty ``to 
interconnect directly or indirectly with the facilities and equipment 
of other telecommunications carriers.''
     Section 251(b) sets forth additional duties for local 
exchange carriers pertaining to resale of services, number portability, 
dialing parity, access to rights-of-way, and reciprocal compensation--
the duty to establish reciprocal compensation arrangements for the 
transport and termination of telecommunications (i.e., arrangements for 
exchange of traffic terminating on another carrier's network).
     Section 251(c) sets forth the most detailed obligations, 
which apply to ILECs, the group of local telephone companies that, 
prior to the 1996 Act, generally had been subject to little or no 
competition. These section 251(c) obligations include: the duty to 
``negotiate in good faith in accordance with section 252 the particular 
terms and conditions of agreements'' to fulfill the section 251(b) and 
(c) requirements; additional direct, physical interconnection 
obligations; requirements to unbundle network elements; the duty to 
allow resale of telecommunications services at wholesale rates; 
requirements to provide notice of network changes; and a requirement to 
allow collocation of equipment.
    387. In turn, section 252 directs State commissions to mediate and 
arbitrate interconnection disputes involving an ILEC, as well as to 
review interconnection agreements arrived at ``by negotiation and 
arbitration.'' The Commission has declined to adopt rules advising the 
State commissions on how to conduct mediations and arbitrations, and 
has stated that the states are in a better position to develop 
mediation and arbitration rules that support the objectives of the 1996 
Act. ILECs are required to negotiate the implementation of section 
251(b) and (c) requirements through interconnection agreements subject 
to section 252, and the Commission has held that the section 252 
process applies even when a request involves section 251(a) and (b) 
alone, without any request under section 251(c). The Commission also 
has concluded that section 252 provides a State forum for disputes 
involving two carriers that are not ILECs regarding the implementation 
of section 251(b) duties.
    388. Although the Commission has authority to adopt rules governing 
the implementation of section 251(b) and (c), precedent demonstrates 
that State commissions acting under section 252 can resolve 
interconnection disputes even as to issues where the Commission has not 
adopted rules. Further, agreements between ILECs and other parties 
under section 252 can be entered ``without regard to the standards set 
forth in subsections (b) and (c) of section 251 of this title.'' And 
while interconnection agreements are subject to approval, by default 
that entails approval by a State commission--not the FCC. Further, 
parties aggrieved by State commission actions under section 252 do not 
raise those with the FCC--instead, they go in the first instance to 
Federal district court.
    389. Even stated at that high level of abstraction, it is clear 
that the section 251/252 framework is significantly at odds with the 
regulatory framework we find warranted for BIAS to implement the ``just 
and reasonable'' requirements of sections 201 and 202; to protect 
consumers; and to advance the public interest. Our bright-line conduct 
rules implementing sections 201 and 202, Title III of the Act, and 
section 706 of the 1996 Act, squarely address key issues regarding the 
carriage of traffic, subject to reasonable network management. We 
otherwise deliberately elect to take a case-by-case approach in 
evaluating BIAS-related conduct, including traffic exchange agreements. 
And although we do not categorically preempt all State or local 
regulation affecting BIAS, we clearly express our intention to preempt 
conflicting State and local regulations--including regulations more 
onerous than the regulatory framework we adopt.
    390. Trying to square our chosen regulatory approach to BIAS with 
the section 251/252 framework is problematic, to say the least. As 
described above, the section 251/252 framework presupposes heavy State 
involvement in its implementation, providing for states to resolve 
previously unaddressed legal and policy questions under the Federal 
framework while also leaving states to impose State law requirements. 
Sections 251 and 252 also render all such decisions subject to State 
commission interpretation and enforcement in the first instance, with 
any direct review coming not from the FCC but from Federal courts. 
Given our conscious choice to leave significant issues to case-by-case 
evaluation, if the section 251/252 framework applied we would risk 
forgoing the ability to be the first one to pass on previously 
unaddressed policy issues, instead yielding those decisions to State 
commissions. Although we could seek to constrain states by adopting ex 
ante rules in this regard specifically implementing section 251, that 
would force us down a course we have expressly disavowed as unwarranted 
under the general conduct rule and oversight of traffic exchange 
agreements, where we find case-by-case review most appropriate. Even 
then, section 251(d)(3) specifies that, in prescribing and enforcing 
regulations to implement the requirements of the section, the 
Commission shall not preclude the enforcement of any regulation, order, 
or policy of a State commission that: (a) establishes access and 
interconnection obligations of local exchange carriers; (b) is 
consistent with the requirements of the section; and (c) does not 
substantially prevent implementation of the requirements of the section 
and the purposes of the part. What is more, tying our rules to the 
section 251/252 framework opens the door for them to be disregarded 
entirely through intercarrier agreements entered into ``without regard 
to the standards set forth in subsections (b) and (c) of section 251.'' 
In sum, rather than a primarily Federal policy framework administered 
in the first instance by the Commission--and our choice of the best mix 
of bright-line rules and case-by-case review--applying the section 251/
252 framework risks forcing us into a choice between preserving case-
by-case review in many scenarios, but leaving unresolved policy 
questions to be first addressed by states in many cases, or else 
forgoing case-by-case review even where we think it is warranted in 
favor of ex ante rules that might have the perverse consequence of 
opening the door for providers to disregard them.
    391. That backdrop is a key overlay to all of our forbearance 
analyses in this regard. Insofar as applying the section 251/252 
framework would undermine the regulatory approach we have identified as 
the best way to ensure just and reasonable rates and practices under 
sections 201 and 202 of the Act, and the best way to protect consumers, 
that is highly relevant to our evaluation of whether there is a current 
Federal need for the section 251/252 framework in the BIAS context 
under the section 10(a)(1) and (a)(2) forbearance criteria. Those 
considerations also carry significant weight in our public interest 
evaluation under section 10(a)(3). Although Congress directed the 
Commission, in section 706 of the 1996 Act, to encourage the deployment 
of advanced telecommunications capability through, among other things, 
``measures that promote competition in the local telecommunications 
market''--

[[Page 45488]]

and we concede that the section 251/252 framework is one such example--
we nonetheless conclude that our approach correctly reflects the 
overall legal framework Congress established in the 1996 Act. Congress 
recognized that our preexisting section 201 authority could enable us, 
in the case of interstate and international services, to do many of the 
same things addressed for intrastate services as well under section 
251, and thus expressly preserved that authority against any inference 
of an implicit repeal or narrowing through its enactment of section 
251. Likewise, the Commission previously has sought to balance the 
advancement of competition policy with the duty to encourage advanced 
services deployment pursuant to section 706, which we conclude is 
advanced by our tailored regulatory approach here. Our overall analysis 
of the record on investment incentives--including evidence and 
arguments regarding more extensive or less extensive regulation than 
the tailored approach adopted here--is discussed in greater detail 
above.
a. Interconnection and Traffic Exchange
    392. Arguments in the record that identify concrete scenarios where 
sections 251(a)(1), 251(b)-(c), 252, and 256 could be relevant only 
involve the related issues of interconnection and traffic exchange. We 
clarify that for purposes of this section we use the term 
``interconnection'' solely in the manner it is used and defined for 
purposes of these provisions. Most significantly, WTA argues that the 
section 251/252 framework could help resolve problems rural carriers 
experience when dealing with ``large internet backbone and middle mile 
transport providers'' due to ``disadvantages and discrepancies in 
negotiation power and resources''--including ``refusals to upgrade the 
capacity and quality of middle mile facilities, take-it-or-leave it 
offers rather than bona fide negotiations of IP interconnection and 
traffic exchange terms and conditions, and demands that broadband 
traffic be accepted at and delivered to large carrier facilities in 
distant cities at the WTA member's expense.'' Although those are 
important concerns, we are not persuaded that applying the section 251/
252 framework--or section 256--would be an appropriate course of 
action. As with our forbearance analysis more generally, we can proceed 
by assuming that certain requirements apply and evaluate the section 10 
criteria on that basis. And because we forbear from the relevant 
requirements we need not, and do not, resolve whether BIAS could 
constitute ``telephone exchange service'' or ``exchange access,'' nor 
whether any particular non-BIAS provider seeking to interconnect and 
exchange traffic with a BIAS provider is a carrier. To the extent that 
WTA goes beyond BIAS and argues that the section 251/252 framework 
should apply to ``any other IP broadband services'' or ``other IP 
interconnection,'' it does not explain what it means in a way that 
would undercut--or even demonstrate the relevance of--those other 
scenarios to the forbearance at issue here. We thus do not depart from 
the forbearance analysis above on the basis of such undeveloped 
references.
    393. Sections 251(a)(1) and 256. Section 251(a)(1) requires all 
carriers to interconnect with other carriers directly or indirectly. 
However, the identified concerns do not demonstrate a refusal to 
interconnect (even indirectly). Rather, they reflect dissatisfaction 
with the claimed inconvenience and expense. Thus, section 251(a)(1) 
does not appear even potentially to be a solution to these concerns.
    394. Likewise, section 256 does not appear any more relevant of a 
solution, even in theory. Section 251(a)(2)--which we do not forbear 
from applying, as explained above--prohibits carriers from 
``install[ing] network features, functions, or capabilities that do not 
comply with the guidelines and standards established'' pursuant to two 
other provisions of the Act. The first of those provisions is section 
255 of the Act, which is designed to make networks more usable by 
individuals with disabilities--and which is the premise of our decision 
not to forbear from applying section 251(a)(2). The second of those 
provisions is section 256, which, without granting the Commission any 
new authority, provides for the Commission to encourage coordinated 
network planning and network interconnectivity, including through 
participating in industry standards-setting. But again, the types of 
industry standards or network planning contemplated by section 256 do 
not appear to address the concerns raised by rural carriers about the 
cost and inconvenience of interconnection.
    395. Consequently, because these concretely identified concerns 
about interconnection would not be addressed by sections 251(a)(1) and 
256 in any case, we see no current Federal need to apply those 
provisions of the Act insofar as they would be newly triggered by our 
classification of BIAS. Indeed, the Commission retains authority under 
sections 201 and 202, and the open internet rules, to address 
interconnection issues should they arise, including through evaluating 
whether BIAS providers' conduct is just and reasonable on a case-by-
case basis. These remaining legal protections that apply with respect 
to BIAS providers will enable us to act if needed to ensure that a 
provider does not unreasonably refuse to provide service or 
interconnect. Thus, we do not find it ``necessary'' to apply section 
251(a)(1) or section 256 to ensure just and reasonable rates and 
practices under section 10(a)(1) or to protect consumers under section 
10(a)(2). For those same reasons, we find forbearance in the public 
interest under section 10(a)(3), consistent with our decision to 
proceed incrementally and make clear the limited extent of our 
departure from the preexisting regulatory status quo.
    396. Sections 251(c)(2) and 252. We next turn to the 
interconnection requirements of section 251(c)(2). That provision 
requires ILECs to provide interconnection ``at any technically feasible 
point within the carrier's network . . . on rates, terms, and 
conditions that are just, reasonable, and nondiscriminatory.'' Because 
it is a provision implemented under the combined section 251/252 
framework, it squarely implicates the full array of concerns discussed 
above about the conflict between that framework and the regulatory 
approach to BIAS that we conclude is most appropriate.
    397. WTA's arguments do not persuade us that forbearance is 
unwarranted. For one, it does not appear that WTA's concerns about 
rural carriers' need to carry traffic ``to large carrier facilities in 
distant cities at the WTA member's expense'' meaningfully would be 
remedied by the application of section 251(c)(2), which still requires 
the carrier invoking section 251(c)(2) to get its traffic to a ``point 
within the [ILEC's] network.'' Although WTA's concerns about ``refusals 
to upgrade the capacity and quality of middle mile facilities'' and 
``take-it-or-leave it offers rather than bona fide negotiations of IP 
interconnection . . . terms and conditions'' theoretically could be 
addressed under section 251(c)(2) where that provision applies, the 
practical scope of that provision appears quite limited as relevant 
here. Even assuming arguendo that the internet backbone providers and 
middle mile providers of concern to WTA would be telecommunications 
carriers (or else they would not be subject to the section 251/242 
framework in the first place), the universe of ILECs providing such 
service--the only providers actually subject to section 251(c)--is far 
more limited. And even then, section 251(c) does not apply to many 
rural carriers by

[[Page 45489]]

virtue of section 251(f). Section 251(f)(1) of the Act establishes a 
default exemption from all of section 251(c) for a ``rural telephone 
company'' absent a request from a carrier invoking section 251(c) and 
an affirmative determination by a State commission ``that such request 
is not unduly economically burdensome, is technically feasible, and is 
consistent with section 254 of this title (other than subsections 
(b)(7) and (c)(1)(D) thereof).'' Further, under section 251(f)(2), 
``[a] local exchange carrier with fewer than 2 percent of the Nation's 
subscriber lines installed in the aggregate nationwide may petition a 
State commission for a suspension or modification of the application of 
a requirement or requirements of subsection (b) or (c)'' of section 
251.
    398. But once we assume arguendo that the internet backbone 
providers and middle mile providers of concern to WTA would be 
telecommunications carriers, that scenario is one that the Commission 
can address far more comprehensively through sections 201 and 202 on a 
case-by-case basis. And it will be the FCC--rather than State 
commissions--addressing previously unresolved policy issues and 
generating a more uniform Federal regulatory framework for BIAS. We 
otherwise have determined that an FCC-led case-by-case evaluation is 
the best approach to internet traffic exchange arrangements consistent 
with our obligation to ensure just and reasonable rates and practices 
under sections 201 and 202 of the Act. Because we conclude that the 
section 251(c)(2)/252 framework would interfere with that approach, and 
because we find that our regulatory approach will enable us to more 
comprehensively and consistently address any issues that arise in this 
regard, while appropriately balancing BIAS providers' investment 
incentives, we conclude that applying those provisions is not 
``necessary'' under section 10(a)(1) and (a)(2), and that forbearance 
is in the public interest under section 10(a)(3).
    399. Sections 251(b)(5) and 252. The final concrete issue raised by 
WTA--its concern about ``take-it-or-leave it offers rather than bona 
fide negotiations of IP . . . traffic exchange terms and conditions''--
requires a clarification about terminology. When the Commission 
referred to ``Internet traffic exchange arrangements'' in the 2015 Open 
Internet Order and again here, it contemplated arrangements or 
agreements potentially dealing with both the physical linking of 
networks and the associated exchange of traffic. Section 251 reflects a 
different approach. Subsections (a)(1) and (c)(2) address the linking 
of networks, while subsection (b)(5) addresses compensation 
arrangements for traffic exchange. Thus, when considering concerns 
associated with traffic exchange under section 251, we must focus on 
subsection (b)(5).
    400. Section 251(b)(5) requires LECs ``to establish reciprocal 
compensation arrangements for the transport and termination of 
telecommunications.'' In the Commission's implementation of this 
provision (in conjunction with other statutory provisions) outside the 
BIAS context, it has established an extensive series of rules 
addressing traffic exchange arrangements between local carriers and 
other carriers, that generally has moved in the direction of ``bill-
and-keep'' arrangements rather than per-minute (or other) intercarrier 
compensation payments. Under bill-and-keep arrangements, a carrier 
generally looks to its end users--which are the entities and 
individuals making the choice to subscribe to that network--rather than 
looking to other carriers and their customers to pay for the costs of 
its network. The changes to the preexisting intercarrier rate 
regulations were paired with universal service support when appropriate 
to account for lost revenues, and with a State role in defining the 
specific point in the network where each carrier is responsible for its 
own costs in delivering the network (called the ``network edge'').
    401. Because section 251(b)(5)--like section 251(c)(2)--is a 
provision implemented under the combined section 251/252 framework, it 
squarely implicates the full array of concerns discussed above about 
the conflict between that framework and the regulatory approach to BIAS 
that we conclude is most appropriate. Against that backdrop, the record 
on this issue likewise does not persuade us that forbearance is 
unwarranted.
    402. As a threshold matter, we are not persuaded to simply apply 
our existing rules implementing section 251(b)(5) in the case of BIAS 
traffic. Those rules reflect a carefully calibrated regulatory regime 
designed to account for historical reliance interests as well as the 
interests of universal service contributors being asked to bear costs 
associated with revenue replacement mechanisms. They were not adopted 
with the expectation that they would apply to BIAS traffic, and 
abruptly doing so could seriously unsettle that careful balance.
    403. Although there is debate in the record about whether and when 
bill-and-keep could be appropriate in this context irrespective of 
those intercarrier compensation rules, our past experience counsels for 
a cautious approach. As noted above, before adopting a shift to bill-
and-keep for traffic historically subject to intercarrier compensation, 
the Commission evaluated a comprehensive record on the merits of such 
an approach, the associated reliance interests that could be affected, 
and how to employ universal service support in response to any 
legitimate reliance interests or need for revenues beyond what could be 
recovered from end users. Absent a carefully calibrated regulatory 
approach founded on such a record, an industry-wide shift to mandatory 
bill-and-keep for BIAS traffic risks disruptive consequences for end-
user BIAS rates, overall industry recovery, and provider viability.
    404. Thus, we find that either applying our existing intercarrier 
compensation framework implementing section 251(b)(5) (along with 
sections 201(b) and 254, among other provisions) or adopting bill-and-
keep here as the industry approach to traffic exchange arrangements for 
BIAS traffic under section 251(b)(5) itself risks undermining just and 
reasonable rates and practices and harming consumers. Thus, applying 
such requirements naturally is not necessary to ensure just and 
reasonable rates and practices under section 10(a)(1) or for the 
protection of consumers under section 10(a)(2). And for those same 
reasons, we find forbearance to be in the public interest under section 
10(a)(3).
    405. The remaining near-term issue is the choice between relying on 
case-by-case assessments under the regulatory framework for BIAS we 
already have identified as most appropriate, or instead on attempting 
case-by-case assessments under the section 251(b)(5)/252 framework. As 
discussed above, there are inherent incompatibilities between the 
Federal case-by-case review we contemplate and any approach that relies 
on the heavily state-commission-dependent section 251/252 framework. 
Thus, we do not see it as realistically viable to maintain both 
approaches simultaneously in disparate forums with the likelihood of 
divergent policy decisions from different decisionmakers. And the 
record does not reveal benefits from the section 251(b)(5)/252 
framework that would offset the harms to what we have identified as the 
best way to ensure just and reasonable rates and practices, to protect 
consumers, and to advance the public interest.
    406. As an alternative to case-by-case evaluation of traffic 
exchange issues, we find the section 251(b)(5)/252 framework inferior. 
For one, as

[[Page 45490]]

contemplated by our regulatory approach based principally on sections 
201 and 202 of the Act, oversight of internet traffic exchange 
arrangements can encompass both interconnection and traffic exchange 
issues. But section 251(b)(5) is limited narrowly to traffic exchange, 
and at best could be paired with the broadly applicable interconnection 
requirement of section 251(a)(1) that imposes limited substantive 
duties unlikely to address the concerns raised in the record and/or the 
(theoretically) somewhat helpful substantive requirement of section 
251(c)(2) that appears likely to apply to at most a very narrow subset 
of the providers of concern. Further, the notion of a truly case-by-
case approach under section 251(b)(5) is at least somewhat illusory. 
Given the wording of section 251(b)(5), an ``originating carrier is 
barred from charging another carrier for delivery of traffic that falls 
within the scope of section 251(b)(5).'' Thus, section 251(b)(5) itself 
constrains the possible outcomes of traffic exchange arrangements as 
compared to the greater flexibility we find in our approach grounded in 
sections 201 and 202.
    407. For all those reasons, we conclude that application of the 
section 251(b)(5)/252 framework is not necessary under section 10(a)(1) 
and (a)(2). For those same reasons, we also conclude that forbearance 
is in the public interest under section 10(a)(3).
b. Generalized Arguments About Competition
    408. We also do not depart from our forbearance analysis above--or 
the forbearance from sections 251 (other than subsection (a)(2)), 252, 
and 256 in the 2015 Open Internet Order--based on generalized arguments 
about the need for, or benefits of, competition. To be clear, we 
forbear from applying all of section 251 other than subsection (a)(2) 
insofar as it would newly apply to BIAS or a BIAS provider by virtue of 
our classification of BIAS as a telecommunications service. Public 
Knowledge asserts that ``[a] wide variety of provisions that the 
Commission proposes to forbear from enforcing are essential to 
promoting competition,'' but does not identify specifically what 
provisions it has in mind. Against the backdrop of the 2015 Open 
Internet Order having identified sections 251, 252, and 256 as 
involving interconnection and market-opening provisions, we consider 
Public Knowledge's arguments in that context here. To the extent that 
Public Knowledge had other provisions in mind, its high-level arguments 
about competition divorced from any reference to specific provisions or 
requirements does not persuade us to depart from the forbearance 
approach adopted in the 2015 Open Internet Order. Competition is 
important, and the regulatory framework for BIAS that we adopt here 
will contribute to increased competition for BIAS itself as well as for 
the broader internet marketplace. At the same time, it is not the 
Commission's purpose to protect specific competitors--or even 
competition merely for its own sake--but ultimately to seek the benefit 
of end users. Thus, generalized arguments about competition do not 
persuade us to depart from the forbearance analysis above, the 
forbearance analysis in the 2015 Open Internet Order, or the 
forbearance from sections 251 (other than subsection (a)(2)), 252, and 
256 granted there.
6. Subscriber Changes (Section 258)
    409. We forbear from applying section 258 insofar as it would newly 
apply by virtue of our classification of BIAS as a Title II 
telecommunications service. Section 258 and the Commission's 
implementing rules provide important protections to voice service 
customers against unauthorized carrier changes. As was the case when 
the Commission adopted the 2015 Open Internet Order, the record does 
not indicate whether or how unauthorized changes involving BIAS 
providers could occur. Consequently, it remains unclear what purpose 
applying this provision would serve, especially given the consumer 
protections afforded by the core BIAS requirements. As under our 
analyses of other Title II provisions from which we forbear, we 
conclude that application of section 258 is not necessary for purposes 
of section 10(a)(1) and (a)(2) and that forbearance is in the public 
interest under section 10(a)(3). We disagree with Public Knowledge that 
we should not forbear from section 258. While we do not disagree that 
section 258 can provide consumers protections for voice services, 
Public Knowledge fails to articulate how an unauthorized carrier change 
could occur in the context of BIAS.
7. Other Title II Provisions
    410. Beyond the provisions already addressed above, we also forbear 
from applying additional Title II provisions that could give rise to 
new requirements by virtue of our classification of BIAS to the extent 
our section 10 authority allows. We find it notable that no commenter 
raises significant concerns about forbearing from these requirements, 
which reinforces our analysis below.
    411. We conclude that the three-part statutory test under section 
10(a) is met to forbear from applying certain provisions concerning 
BOCs in sections 271-276 of the Act to the extent that they would 
impose new requirements arising from classifying BIAS as a Title II 
telecommunications service, as the Commission did in the 2015 Open 
Internet Order. Sections 271, 272, 274, and 275 establish requirements 
and safeguards regarding the provision of interLATA services, 
electronic publishing, and alarm monitoring services by the BOCs and 
their affiliates. The Commission has determined that section 271 has 
been fully implemented throughout the United States. Therefore, the 
prohibition in section 10(d) of the Act against forbearing from section 
271 prior to such a determination is not applicable. Section 273 
addresses the manufacturing, provision, and procurement of 
telecommunications equipment and customer premises equipment (CPE) by 
the BOCs and their affiliates, the establishment and implementation of 
technical standards for telecommunications equipment and CPE, and joint 
network planning and design, among other matters. Section 276 addresses 
the provision of ``payphone service,'' and in particular establishes 
nondiscrimination standards applicable to BOCs' provision of payphone 
service.
    412. We again conclude that the application of any newly triggered 
provisions of sections 271 through 276 to BIAS is not necessary within 
the meaning of section 10(a)(1) or (a)(2), and that forbearance from 
these requirements is consistent with the public interest under section 
10(a)(3), with one exception regarding section 276 that we discuss 
below. Many of the provisions in these sections are not currently in 
effect at all. Others impose continuing obligations that are, at most, 
tangentially related to the provision of BIAS. Forbearance from any 
application of these provisions with respect to BIAS insofar as they 
are newly triggered by our classification of that service will not 
meaningfully affect the charges, practices, classifications, or 
regulations for or in connection with that service, consumer 
protection, or the public interest. The Alarm Industry Communications 
Committee (AICC) argues that we should not forbear from section 275 
because it ``would actively strip the alarm industry of existing 
protections.'' AICC asserts that refraining from forbearance of section 
275 would be consistent with the 2015 Open Internet Order because 
``that

[[Page 45491]]

Order held that forbearance from section 275 was only appropriate where 
it would impose new requirements arising from the reclassification of 
BIAS as a Title II service.'' We note that the 2015 Open Internet Order 
specifically said that it forbears from section 275, inter alia, ``to 
the extent that [it] would impose new requirements arising from the 
classification of broadband internet access service in this Order.'' We 
take the same approach in the Order, and therefore find that the Order 
does not strip the alarm industry of any protections that may have 
existed prior to our reclassification of BIAS. Consistent with our 
general approach to forbearance here, which seeks to address new 
requirements that could be triggered by our classification of BIAS, we 
do not forbear with respect to provisions to the extent that they 
already applied prior to the Order. For example, section 271(c) 
establishes substantive standards that a BOC was required to meet to 
obtain authorization to provide interLATA services in an in-region 
state, which it must continue to meet to retain that authorization. In 
addition, section 271(c)(2)(B)(iii), which requires that a BOC provide 
nondiscriminatory access to poles, ducts, conduits, and rights-of-way 
in accordance with the requirements of section 224 of the Act, does not 
depend upon the classification of BOCs' BIAS. In combination with 
section 271(d)(6), this provision provides the Commission with an 
additional mechanism to enforce section 224 against the BOCs. We also 
do not forbear from section 271(d)(6) to the extent that it provides 
for enforcement of the provisions we do not forbear from here. In 
addition, while the BOC-specific provisions of section 276 
theoretically could be newly implicated insofar as the reclassification 
of BIAS might result in some entities newly being treated as a BOC, the 
bulk of section 276 appears independent of the classification of BIAS 
and we thus do not forbear as to those provisions.
    413. We generally forbear from applying sections 221 and 259 of the 
Act, consistent with our forbearance throughout the Order. First, as 
described elsewhere, we forbear from all ex ante and ex post rate 
regulation, tariffing, and related recordkeeping and reporting 
requirements insofar as they would arise from our classification of 
BIAS. Second, we likewise forbear from unbundling and network access 
requirements that would newly apply based on the classification 
decision in the Order. We predict that other protections will be 
adequate to ensure just, reasonable, and nondiscriminatory conduct by 
providers of BIAS and to protect consumers for purposes of section 
10(a)(1) and (a)(2). Further, informed by our responsibilities under 
section 706, we adopt a regulatory approach that we find strikes the 
appropriate public interest balance under section 10(a)(3). For these 
reasons, we also forbear from section 221's property records 
classification and valuation provisions, which would be used in the 
sort of rate regulation that we do not find warranted for BIAS. 
Likewise, just as we forbear from broader unbundling obligations, that 
same analysis persuades us to forbear from applying section 259's 
infrastructure-sharing and notification requirements.
    414. We also again grant forbearance from other miscellaneous 
provisions to the extent that they would newly apply as a result of our 
classification insofar as they do not appear necessary or even relevant 
for BIAS. Section 226 protects consumers making interstate operator 
services calls from pay telephones and other public telephones from 
unreasonably high rates and anti-competitive practices. Section 
227(c)(3) imposes on carriers certain notification obligations related 
to the Telephone Consumer Protection Act (TCPA), and section 227(e) 
restricts the provision of inaccurate caller identification information 
associated with any telecommunications service. Because we are 
forbearing from these substantive requirements, we note that, as a 
consequence, there will not be a private right of action granted under 
section 227(c)(5) based on alleged violations of those forborne-from 
requirements in the context of BIAS. We note that while the universe of 
``calls'' covered by section 227(b)(1)(A)(iii) is prerecorded or 
autodialed calls to ``a paging service, cellular telephone service, 
specialized mobile radio service, or other radio common carrier 
service, or any service for which the called party is charged for the 
call'' even with the reclassification of mobile BIAS we do not 
interpret there to be any new or expanded restrictions arising from 
that provision because the relevant calls also would need to be 
specifically to a ``telephone number'' assigned to the relevant service 
As a result, there also would not be any private right of action under 
section 227(b)(3) that is newly triggered by the decisions in the 
Order. Section 228 regulates the offering of pay-per-call services and 
requires carriers, inter alia, to maintain lists of information 
providers to whom they assign a telephone number, to provide a short 
description of the services the information providers offer, and to 
provide a statement of the cost per minute or the total cost for each 
service. Section 260 regulates LEC practices with respect to the 
provision of telemessaging services. It remains unclear how these 
provisions would be relevant to BIAS, and commenters do not explain how 
or argue that they would. Since the core BIAS requirements would also 
still be available to the Commission, we find that enforcing these 
provisions, to the extent they would newly apply by virtue of our 
classification of BIAS, is not necessary to ensure that the charges, 
practices, classifications, or regulations by, for, or in connection 
with BIAS providers are just and reasonable and are not unjustly or 
unreasonably discriminatory under section 10(a)(1). Enforcement also is 
not necessary for the protection of consumers under section 10(a)(2), 
and forbearance from applying these provisions is consistent with the 
public interest under section 10(a)(3), particularly given our 
conclusion, informed by section 706, that it is appropriate to adopt a 
tailored approach here.
    415. We clarify that we will not forbear from applying section 276 
to the extent it applies to incarcerated people's communications 
services (IPCS) or the Commission's IPCS rules. Though the IPCS rules 
themselves do not appear to vary depending on whether BIAS is an 
``information service'' or ``telecommunications service,'' the 
Commission previously made this clarification in the 2015 Open Internet 
Order to respond to a concern that forbearance ``could be misconstrued 
as a limitation on the Commission's authority with respect to any 
advanced ICS services (such as video visitation) that may replace or 
supplement traditional ICS telephone calls.'' Congress amended section 
276 of the Act in January 2023 to expand the Commission's authority 
over IPCS under that provision, but the ultimate scope and bounds of 
that expanded authority is the subject of a pending rulemaking 
proceeding. Consistent with our conclusion below that it would be 
contrary to the public interest to forbear from applying section 276 to 
the extent it applies to IPCS or the Commission's IPCS rules, given 
open questions about the scope of the Commission's expanded authority 
under section 276, we find it prudent at this time--and consistent with 
the public interest--to retain our full section 201(b) authority 
specifically in the context of IPCS, as well. Though no commenter 
raises similar concerns in this proceeding, we make the same 
clarification, consistent

[[Page 45492]]

with the Commission's ongoing efforts to grant relief from exorbitantly 
high rates for calls between incarcerated people and their loved ones, 
particularly in light of Congress recently recognizing the increased 
role that advanced communications plays in these communications. This 
also is consistent with the Commission not forbearing from section 225, 
as the Commission has acted to improve communications access for 
incarcerated people with disabilities. We therefore find that 
forbearance would fail to meet the statutory test of section 10 of the 
Act, in that the protections of section 276 remain necessary to protect 
consumers and serve the public interest.
8. Truth-in-Billing Rules
    416. We again forbear from applying our truth-in-billing rules 
insofar as they are triggered by our classification of BIAS here. As 
with our section 10 analysis above, we conclude that our truth-in-
billing rules are not needed for the purposes of section 10(a)(1) and 
(2) and that forbearance is in the public interest under section 
10(a)(3). No commenter discusses whether we should or should not 
forbear from our truth-in-billing rules, and we have no reason to 
believe that ``our core BIAS requirements, including the requirement of 
just and reasonable conduct under section 201(b), will not provide 
important protections in this context even without specific rules.''
9. Roaming-Related Provisions and Regulation
    417. We adopt our proposal to grant the same conditional 
forbearance from common carrier roaming regulations as in the 2015 Open 
Internet Order and find that doing so meets the section 10(a) analysis. 
As there is no record discussion regarding our forbearance from 
applying the Commission's roaming rules, we have no reason to believe 
that we should depart from the forbearance in the 2015 Open Internet 
Order or that it would fail to meet the section 10(a) analysis. The 
Commission has established two different regimes to govern the roaming 
obligations of commercial mobile providers. One requires certain CMRS 
providers, ``on reasonable request, to provide automatic roaming on 
reasonable and not unreasonably discriminatory terms and conditions.'' 
The second requires providers of commercial mobile data services, as 
defined and including mobile BIAS, to ``offer roaming arrangements to 
other such providers on commercially reasonable terms and conditions, 
subject to certain specified limits.'' As the Commission previously 
determined in the 2015 Open Internet Order, it remains the case that 
reclassifying mobile BIAS as CMRS potentially affects the roaming 
obligations of mobile BIAS providers in two ways. First, absent any 
action by the Commission to preserve data roaming obligations, the 
determination that mobile BIAS is an interconnected service would 
result in providers of mobile BIAS no longer being subject to the data 
roaming rule, which applies only to non-interconnected services. 
Second, the determination that mobile BIAS is CMRS potentially subjects 
mobile BIAS providers to the terms of the CMRS roaming rules.
    418. We again forbear from the application of the CMRS roaming 
rule, Sec.  20.12(d) of the Commission's rules, to mobile BIAS, 
conditioned on such providers continuing to be subject to the 
obligations, process, and remedies under the data roaming rule codified 
in Sec.  20.12(e). Retaining the roaming obligations for mobile BIAS 
that applied prior to reclassification remains consistent with our 
tailored approach, and we are again persuaded that the Commission rules 
in Sec.  20.12(e) and our remaining core BIAS requirements render the 
forborne-from rules unnecessary. We thus find that applying the 
forborne-from rules is not necessary for purposes of section 10(a)(1) 
and (a)(2) and that the conditional forbearance is in the public 
interest under section 10(a)(3).
10. Terminal Equipment Rules
    419. We also again forbear from applying certain terminal equipment 
rules to the extent that they would newly apply by virtue of the 
classification of BIAS. Similar to the rules adopted in the 2015 Open 
Internet Order, the open internet rules we adopt in the Order will 
prevent BIAS providers from restricting the use of non-harmful devices 
subject to reasonable network management. The record does not discuss 
whether we should forbear from our terminal equipment rules. We thus 
find that applying the Commission's terminal equipment rules, insofar 
as they would newly apply to BIAS providers by virtue of our 
classification decision here, are necessary for purposes of section 
10(a)(1) and (a)(2), particularly given the availability of the core 
BIAS requirements, and in particular our bright-line rules. Likewise, 
as above, under the tailored regulatory approach we find warranted 
here, informed by our responsibilities under section 706, we conclude 
that forbearance is in the public interest under section 10(a)(3).

D. Other Regulations and Non-Title II Provisions

1. Maintaining Authority Under Certain Title III Provisions
a. Wireless Licensing
    420. We clarify that we do not forbear from applying--or waive--our 
rules governing the wireless licensing process and authorities and 
clarify that our adopted forbearance does not encompass Title III 
licensing, except to the extent specifically noted below. Among other 
benefits, we find that maintaining these provisions will support our 
national security goals, as they will allow us to continue to review 
wireless license applications under our normal processes, including to 
determine whether they are in the public interest--which includes 
consideration of national security. As we observed in the 2023 Open 
Internet NPRM, our Title III licensing authority with respect to 
facilities-based mobile BIAS providers independently ``grant[s] us 
important authority that can be used to advance national security and 
public safety with respect to the services and equipment subject to 
licensing.'' In determining whether to grant an original application 
for a license or permit or an application for renewal of a license 
under Title III (47 U.S.C. 309(a)), approve the assignment or transfer 
of control of a Title III license or permit (47 U.S.C. 310(d)), or 
revoke a Title III license or permit (47 U.S.C. 312(a)(2)), the 
Commission considers whether the applicant has the requisite 
citizenship, character, and other necessary qualifications. The 
Commission also must ``determine whether the public interest, 
convenience, and necessity will be served'' by granting the application 
or revoking the license or permit. Among the factors the Commission may 
consider are national security, law enforcement, public safety, or 
other risks. Therefore, given the Commission's public interest 
obligations in licensing decisions, and based on the key public 
interest considerations that inform our action in the Order, we retain 
the right to review fully original applications and applications for 
assignment or transfer of control of Title III licenses and permits, 
and we reserve the right to conduct ad hoc review of whether a 
licensee's retention of a Title III license presents national security, 
law enforcement, public safety, or other risks that warrant revocation 
of such authority. We discuss how our review under Title III 
requirements intersects with our determinations regarding foreign 
ownership requirements below. The record does not address whether we

[[Page 45493]]

should adopt the same forbearance for Title III wireless licensing as 
the Commission did in the 2015 Open Internet Order, so we have no basis 
for adopting different findings here. We do mean, however, to apply 
current Title III wireless licensing requirements (i.e., ones that are 
new or revised since the 2015 Open Internet Order). Adopting this 
approach also has the added benefit of being consistent with the 
Commission adopting largely the same broad forbearance as the 2015 Open 
Internet Order. Consequently, as the Commission found in the 2015 Open 
Internet Order, we find that forbearing from the Commission's flexible 
use rules would be against the public interest under section 10(a)(3) 
because it would lead to inaccurate license information. Accordingly, 
we do not forbear from applying--or waive--the wireless licensing 
requirements under Title III and the Commission's rules, except to the 
extent specified below.
b. Foreign Ownership of Common Carrier Wireless Licensees (Section 
310(a) and (b))
    421. With limited exceptions, we do not forbear from section 310(a) 
and (b) of the Act, which requires the Commission to review foreign 
investment in radio station licenses and imposes specific limitations 
on who may hold certain types of radio station licenses. As discussed 
below, we find that forbearance from section 310(a) and (b), except to 
the extent the Commission previously determined to forbear from section 
310(b)(3) for wireless common carriers, would neither serve the public 
interest under section 10(a)(3) nor satisfy the requirements of section 
10(a)(2) as it pertains to the protection of consumers. As noted below, 
the Commission previously determined that forbearance from the 
application of section 310(b)(3) to wireless common carriers, which now 
includes wireless BIAS providers, was in the public interest with 
respect to a discrete type of foreign ownership. We anticipate a future 
proceeding will, among other things, develop a fuller record on the 
application of the Commission's rules implementing section 310(b)(3) 
and (b)(4) in the context of BIAS.
    422. By the Order, we find that foreign ownership in excess of the 
statutory benchmarks in common carrier wireless licensees that are 
providing only BIAS is in the public interest under section 310(b)(3) 
when such foreign ownership is held in the licensee through a U.S. 
entity that does not control the licensee, and under section 310(b)(4). 
Common carrier wireless licensees that are providing other common 
carrier services in addition to BIAS will still need a ruling for their 
indirect foreign ownership above the statutory benchmarks, as the 
waiver will only apply to BIAS and not other common carrier wireless 
services. We also waive the associated requirements for such licensees 
to request a declaratory ruling under Sec. Sec.  1.5000 through 1.5004 
of the Commission's rules, until the adoption of any rules for BIAS.
    423. Section 310(a) and (b) of the Act provide for Commission 
review of foreign investment in radio station licenses and impose 
specific restrictions on who may hold certain types of radio station 
licenses. Section 310(a) prohibits foreign governments or their 
representatives from holding any radio station license, and section 
310(b)(1) and (b)(2) prohibits foreign individuals or their 
representatives and corporations organized under the laws of a foreign 
government from holding a broadcast, common carrier, or aeronautical en 
route and aeronautical fixed (hereinafter, aeronautical) radio station 
license. The prohibitions in section 310(a), (b)(1), and (b)(2) are 
absolute, and the Commission has no discretion to waive them. The 
Commission has stated that, for purposes of section 310(a), a `` 
`representative' '' is a person or entity that acts `` `in behalf of' 
'' or `` `in connection with' '' the foreign government. Section 
310(b)(3) prohibits foreign individuals, governments, and corporations 
from owning or voting more than 20% of the capital stock of a 
broadcast, common carrier, or aeronautical radio station licensee. 
Section 310(b)(3), unlike section 310(b)(4), does not give the 
Commission the discretion to permit foreign ownership above the 
statutory threshold. Section 310(b)(4) establishes 25% benchmarks for 
investment by foreign individuals, governments, and corporations in a 
U.S.-organized entity that directly or indirectly controls a U.S. 
broadcast, common carrier, or aeronautical radio licensee. Foreign 
individuals, governments, or entities may own, directly or indirectly, 
more than 25% (and up to 100%) of the stock of a U.S.-organized entity 
that holds a controlling interest in a broadcast, common carrier, or 
aeronautical radio licensee, unless the Commission finds that the 
public interest will be served by refusing to permit such foreign 
ownership. In the 2012 Foreign Ownership First Report and Order (77 FR 
50628 (Aug. 22, 2012)), the Commission determined to forbear from 
applying the foreign ownership limits in section 310(b)(3) to the class 
of common carrier licensees in which the foreign investment is held in 
the licensee through a U.S.-organized entity that does not control the 
licensee, to the extent the Commission determines such foreign 
ownership is consistent with the public interest under the policies and 
procedures that apply to the Commission's public interest review of 
foreign ownership subject to section 310(b)(4) of the Act. The 
Commission's forbearance authority does not extend to broadcast or 
aeronautical radio station licensees covered by section 310(b)(3). The 
forbearance approach that the Commission adopted in the 2012 Foreign 
Ownership First Report and Order applies only to foreign ownership in 
common carrier licensees held through intervening U.S.-organized 
entities that do not control the licensee. The Commission codified this 
forbearance approach in the 2013 Foreign Ownership Second Report and 
Order, which adopted rules to treat foreign investment under section 
310(b)(4) and the forbearance approach of section 310(b)(3) 
consistently.
    424. Forbearance Is Not in the Public Interest With Limited 
Exceptions. We do not forbear from section 310(a) and (b) of the Act 
except to (1) extend our existing section 310(b)(3) forbearance policy 
to not require the filing of a petition for declaratory ruling or 
similar request where and to the extent the Commission has already 
found the foreign ownership at issue to be in the public interest and 
(2) provide a reasonable period for other BIAS providers newly subject 
to section 310(b)(3) to reduce their foreign ownership interests below 
the statutory limit or restructure their holdings to include an 
intervening, non-controlling U.S. interest holder. Our determination 
that this limited forbearance is in the public interest rests on the 
same reasoning as our determination below that waiver of the associated 
rules is in the public interest. The Commission concluded in 2012 that 
application of the statutory threshold is not necessary to ensure that 
rates are just and reasonable and not unjustly or unreasonably 
discriminatory, and we determine below that consumers will benefit from 
our decision not to require BIAS-only providers to file petitions for 
declaratory ruling under the circumstances described here. Except to 
this limited extent, we find that forbearance from section 310(a) and 
(b) would neither serve the public interest under section 10(a)(3) nor 
satisfy the requirements of section 10(a)(2) as it pertains to the 
protection of consumers. Congress created the Commission,

[[Page 45494]]

among other reasons, ``for the purpose of the national defense [and] 
for the purpose of promoting safety of life and property through the 
use of wire and radio communication.'' We find that our decision not to 
forbear ensures the Commission can continue to advance the public 
interest, and furthers two core purposes--national security and the 
promotion of safety of life and property--for which Congress created 
the Commission. In the 2023 Open Internet NPRM, we sought comment ``on 
any other provisions of the Act or Commission rules that likewise 
should be expressly excluded from the scope of forbearance based on 
national security and/or public safety considerations, including, for 
example, sections 305, 310, and 332 of the Act.'' In evaluating a 
petition for a declaratory ruling seeking a determination that it is in 
the public interest to exceed the statutory foreign ownership 
benchmarks, the Commission's public interest analysis under section 
310(b)(3) and (b)(4) considers, among other things, any national 
security, law enforcement, foreign policy, and trade policy concerns 
raised by the proposed foreign investment. The Commission has also 
identified public safety and security of critical infrastructure as 
relevant to the Commission's review of foreign investment under section 
310(b)(4). We find that our decision not to forbear further from 
section 310(a) and (b) is consistent with the Commission's statutory 
responsibilities under section 10(a) and is warranted based on the key 
public interest considerations that inform our action in the Order and 
to enable the Commission to address national security, public safety, 
and other public interest concerns with respect to BIAS.
    425. Public Interest Finding and Waiver of Rules. Notwithstanding 
the determination about public interest considerations supporting our 
decisions regarding section 310(b)'s application to BIAS, we reserve 
the right, as part of our review under Title III licensing provisions, 
to override that determination with respect to specific applications. 
Under the existing section 310(b)(3) forbearance policy, and under the 
Commission's rules applicable to section 310(b)(4), wireless common 
carriers must file a petition for declaratory ruling before they may 
exceed the statutory foreign ownership thresholds. The Commission 
applies the same rules to both types of petitions for declaratory 
ruling. Sections 1.5000 through 1.5004 of the Commission's rules 
implement section 310(b)(3)--with regard to the class of common carrier 
radio station licensees subject to the forbearance approach adopted in 
the 2012 Foreign Ownership First Report and Order that seek Commission 
approval to exceed the 20% foreign ownership limit in section 
310(b)(3)--and section 310(b)(4) of the Act. We recognize that 
application of these rules may raise operational issues in the context 
of BIAS. WISPA, for example, addresses the potential impact on common 
carrier wireless licensees that would be subject to section 310(b) 
pursuant to our reclassification of BIAS under Title II. The Commission 
anticipates releasing a further notice of proposed rulemaking to 
address this and other comments. By the Order, and pending the outcome 
of a further notice of proposed rulemaking, we find that foreign 
ownership interests that exceed the statutory benchmarks in common 
carrier wireless licensees that are providing only BIAS are in the 
public interest under section 310(b)(3)--when such foreign ownership is 
held in the licensee through a U.S. entity that does not control the 
licensee--and under section 310(b)(4). The waiver that we adopt in the 
Order shall not apply to any common carrier wireless licensee providing 
only BIAS that does not fall within this class, including foreign 
ownership held directly in a common carrier wireless licensee under 
section 310(b)(3). Foreign ownership held directly in common carrier 
licensees under section 310(b)(3) is not subject to the forbearance 
approach adopted in the 2012 Foreign Ownership First Report and Order 
and shall not be covered in the waiver that we adopt in the Order. As 
such, the 20% foreign ownership limit set forth in section 310(b)(3) 
shall apply to such common carrier wireless licensee providing only 
BIAS that does not fall within this class. For the same reasons 
discussed below in support of our waiver of the rules, and in 
furtherance of our decision to extend our existing section 310(b)(3) 
forbearance policy for common carrier licensees to BIAS-only providers, 
we temporarily find that foreign ownership in a common carrier wireless 
licensee providing only BIAS is in the public interest where foreign 
interests are held in a licensee through an intervening U.S. entity 
that does not control the licensee, even though we are temporarily not 
requiring the filing of a petition for declaratory ruling as to such 
interests. For such licensees, we waive the requirements to request a 
declaratory ruling under Sec. Sec.  1.5000 through 1.5004 of the 
Commission's rules, pending adoption of any rules for BIAS. We 
recognize that, for the period for which we waive Sec. Sec.  1.5000 
through 1.5004 of the rules as specified herein, we will not be 
receiving petitions for declaratory ruling seeking prior approval to 
exceed the section 310(b)(3) and (b)(4) statutory benchmarks--as set 
out in the existing rules--from common carrier wireless licensees that 
are providing only BIAS, and it is our intent to address this matter in 
a further notice of proposed rulemaking. This waiver of those rules as 
it relates to the foreign ownership of common carrier wireless 
licensees providing only BIAS will not apply to foreign ownership held 
directly in such licensees under section 310(b)(3). We note that the 
blanket section 214 authority that we grant to such common carrier 
wireless licensees providing BIAS, pursuant to our reclassification of 
BIAS in the Order, is subject to the Commission's power to revoke such 
authority. The Commission also has the power to revoke a Title III 
station license, including ``for willful or repeated violation of, or 
willful or repeated failure to observe any provision of this chapter or 
any rule or regulation of the Commission authorized by this chapter or 
by a treaty ratified by the United States.''
    426. We further find that temporary forbearance is warranted to 
afford additional time after the Order's effective date for other BIAS 
providers newly subject to Title II to restructure to the extent 
necessary to bring any direct foreign ownership interest in the 
licensee below the statutory limit or to include a non-controlling 
intervening U.S. interest holder. WISPA asked the Commission to provide 
time for these providers to come into compliance with section 310(b)(3) 
and the terms of the forbearance policy applicable to BIAS providers 
with foreign interests in the licensee held through a non-controlling 
U.S. entity. We find that a compliance period of twelve months after 
the effective date is reasonable based on the amount of time that it 
could take to restructure corporate ownership or take other similar 
steps to come into compliance given our experience with transactions of 
a similar scale and type and strikes the right balance between 
maximizing public interest benefits and minimizing potential public 
interest harm. For that period of time, enforcement of the statutory 
prohibition in section 310(b)(3) is not necessary to protect consumers 
or ensure just and reasonable and nondiscriminatory rates and 
practices. Forbearing from enforcement of the prohibition for that 
period of time serves the public interest by allowing newly covered 
BIAS providers to continue providing service

[[Page 45495]]

during the limited time necessary to protect existing investments in 
such businesses without presenting undue risk of harm given the limited 
duration of this temporary forbearance. Following that period of time, 
forbearance will no longer serve the public interest except as the 
Commission adopted in the 2012 Foreign Ownership First Report and Order 
and as applied herein with respect to foreign interests held in the 
licensee through a non-controlling U.S. interest holder.
    427. The Commission may waive its rules and requirements for ``good 
cause shown.'' Good cause, in turn, may be found ``where particular 
facts would make strict compliance inconsistent with the public 
interest.'' In making this determination, the Commission may ``take 
into account considerations of hardship, equity, or more effective 
implementation of overall policy,'' and if ``special circumstances 
warrant a deviation from the general rule and such deviation will serve 
the public interest.'' As discussed above, the current rules that 
implement section 310(b)(3) and (b)(4) of the Act establish 
requirements and conditions for obtaining the Commission's prior 
approval of foreign ownership in common carrier wireless licensees, 
among other licensees. Importantly, the current rules that we waive, as 
set out in the Order, were established in the context of traditional 
telecommunications services, and thus we find there is good cause to 
waive those rules pending adoption of any rules for BIAS.
    428. As such, we find that, for the period leading to adoption of 
any rules for BIAS, foreign ownership in excess of the statutory 
benchmarks in common carrier wireless licensees that are providing only 
BIAS is in the public interest under section 310(b)(3) when such 
foreign ownership is held in the licensee through a U.S.-organized 
entity that does not control the licensee and under section 310(b)(4). 
For such licensees, we waive the requirements to request a declaratory 
ruling under Sec. Sec.  1.5000 through 1.5004 of the Commission's 
rules, pending the adoption of any rules for BIAS. We find that our 
decision to waive Sec. Sec.  1.5000 through 1.5004 of the Commission's 
rules with respect to this class of licensees is in the public interest 
given our consideration of hardship and equity that may be raised by 
immediate application of those rules to such licensees following our 
action in the Order. The reclassification of BIAS under Title II is a 
special circumstance that requires careful consideration of rules 
concerning BIAS and thus warrants deviation at this time from the 
application of our current rules implementing section 310(b)(3) and 
(b)(4), pending a further notice of proposed rulemaking. We find that 
the public interest is served as our approach will ensure that 
consumers can continue to receive the BIAS services to which they 
subscribe. Additionally, by waiving the requirements to request a 
declaratory ruling under Sec. Sec.  1.5000 through 1.5004 of the 
Commission's rules, where it pertains to the foreign ownership of 
common carrier wireless licensees that are providing only BIAS as set 
out in the Order, we will avoid any disruption to or uncertainty for 
BIAS consumers and BIAS providers. As we conclude in the present Order, 
our action to reclassify BIAS under Title II will protect consumers and 
ensure a safe, secure, and open internet. Accordingly, we find that 
granting a waiver of the requirements to request a declaratory ruling 
under Sec. Sec.  1.5000 through 1.5004 of the Commission's rules, where 
it pertains to the foreign ownership of common carrier wireless 
licensees that are providing only BIAS as set out in the Order, is 
fully consistent with our responsibility to account for the effective 
implementation of our overall obligations and objectives to address 
national security, law enforcement, public safety, or other public 
interest concerns while ensuring the uninterrupted provision of BIAS 
for consumers pending a further notice of proposed rulemaking to 
develop a fuller record. This waiver as set out in the Order will 
remain in effect pending such further notice of proposed rulemaking and 
the adoption of any rules for BIAS.
    429. We find that it is in the public interest not to disturb the 
section 310(b)(3) forbearance approach the Commission adopted in the 
2012 Foreign Ownership First Report and Order and to temporarily apply 
it to those common carrier wireless licensees providing only BIAS as 
set out in the Order. We recognize that the forbearance analysis 
adopted in the 2012 Foreign Ownership First Report and Order relied on 
the filing of a declaratory ruling and prior approval of the 
Commission. At this time, however, we find that there is good cause to 
apply the section 310(b)(3) forbearance approach to those common 
carrier wireless licensees providing only BIAS, where strict compliance 
with the rules implementing section 310(b)(3)--in those instances where 
the foreign ownership is held in the licensee through a U.S. entity 
that does not control the licensee--would be inconsistent with the 
public interest based on consideration of hardship and equity that may 
be raised by immediate application of those rules until the Commission 
releases a further notice of proposed rulemaking to develop a fuller 
record on this matter. Pending such further notice of proposed 
rulemaking, we note that the Commission stated in the 2012 Foreign 
Ownership First Report and Order, with regard to the class of common 
carrier licensees subject to the forbearance approach adopted in that 
Order, ``that the public interest would be served by not applying the 
foreign ownership limit of section 310(b)(3) to licensees subject to 
section 310(b)(3) forbearance . . . for the same reasons that the 
public interest is served when we allow, under section 310(b)(4), 
greater than 25 percent foreign ownership in a U.S.-organized entity 
that does control the licensee under otherwise identical 
circumstances.'' The approach that we adopt in the Order would allow us 
to treat foreign ownership in excess of the statutory benchmarks in 
common carrier wireless licensees providing only BIAS consistently 
under section 310(b)(4) and (b)(3), respectively, whether the foreign 
ownership is held through a controlling U.S. parent of the common 
carrier licensee or through an intervening U.S. entity that does not 
control the licensee, by including such licensees here and waiving 
Sec. Sec.  1.5000 through 1.5004 of the Commission's rules until 
adoption of any rules.
2. Forbearance From Certain Provisions of Titles III, VI, and Other 
Commission Rules
    430. We forbear from applying other provisions of the Act insofar 
as they would be triggered by classifying BIAS as a telecommunications 
service, to the extent of our section 10 authority. In particular, 
beyond the Title II provisions and certain implementing rules discussed 
above, we grant forbearance, as the Commission did in the 2015 Open 
Internet Order, from obligations related to BIAS providers' provision 
of BIAS under certain provisions of Title III, Title VI, and associated 
Commission rules. We conclude that the same analysis justifies 
forbearance from these provisions, and the record does not dispute 
that. We thus predict, as we did in the 2015 Open Internet Order, that 
other provisions and rules will be adequate to ensure just, reasonable, 
and nondiscriminatory conduct by BIAS providers and to protect 
consumers for purposes of section 10(a)(1) and (a)(2). Further, 
informed by our responsibilities under section 706, we find the 
tailored regulatory approach we

[[Page 45496]]

adopt strikes the appropriate public interest balance under section 
10(a)(3). Accordingly, we adopt the following forbearance:
     First, we forbear from applying certain provisions of 
Titles III and VI and Commission rules associated with those Titles or 
the provisions of Title II from which we forbear that may apply by 
their terms to providers classified in particular ways. The Commission 
has forborne from provisions of Title II and from Commission rules in 
many instances in the past. However, nothing in the language of section 
10 categorically limits the scope of Commission forbearance only to the 
provisions of Title II, and although it has been less common for the 
Commission to forbear from provisions of Titles III and VI, it has done 
so at times. For clarity, we note that by ``rules'' we mean both 
codified and uncodified rules. In addition, by ``associated'' 
Commission rules, we mean rules implementing requirements or 
substantive Commission jurisdiction under provisions in Title II, III, 
and/or VI of the Act from which we forbear. As to this first category 
of requirements, and except as to the core BIAS requirements, we 
forbear from any such provisions and regulations to the full extent of 
our authority under section 10, but only insofar as a BIAS provider 
falls within those categories or provider classifications by virtue of 
its provision of BIAS, but not insofar as those entities fall within 
those categories of classifications by virtue of other services they 
provide. The Order's classification of BIAS could trigger requirements 
that apply by their terms to ``common carriers,'' ``telecommunications 
carriers,'' ``providers'' of common carrier or telecommunications 
services, or ``providers'' of CMRS or commercial mobile services. 
Similarly, other provisions of the Act and Commission rules may impose 
requirements on entities predicated on an entity's classification as a 
``common carrier,'' ``telecommunications carrier,'' ``provider'' of 
common carrier or telecommunications service, or ``provider'' of CMRS 
or commercial mobile service without being framed in those terms.
     Second, we forbear from applying certain provisions of 
Titles III and VI and Commission rules associated with those Titles or 
the provisions of Title II from which we forbear that may apply by 
their terms to services classified in particular ways. The 
classification of BIAS as a telecommunications service and, in the 
mobile context, CMRS, under the Communications Act, thus could trigger 
any requirements that apply by their terms to ``common carrier 
services,'' ``telecommunications services,'' or ``CMRS'' or 
``commercial mobile'' services. Similarly, other provisions of the Act 
and Commission rules may impose requirements on services predicated on 
a service's classification as a ``common carrier service,'' 
``telecommunications service,'' ``CMRS,'' or ``commercial mobile'' 
service without being framed in those terms. Regarding this second 
category of requirements (to the extent not already covered by the 
first category), and except as to the core BIAS requirements, we 
forbear from any such provisions and regulations to the full extent of 
our authority under section 10 specifically with respect to BIAS, but 
do not forbear from these requirements as to any other services (if 
any) that BIAS providers offer that are subject to these requirements.
     Third, while commenters do not appear to have identified 
such rules, there potentially could be other Commission rules for which 
our underlying authority derives from provisions of the Act all of 
which we forbear from under the first two categories of requirements 
identified above, but which are not already subject to that identified 
scope of forbearance. To the extent not already identified in the first 
two categories of requirements above, and except as to the core BIAS 
requirements, we forbear to the full extent of our authority under 
section 10 from rules based entirely on our authority under provisions 
from which we forbear under the first and second categories above (or 
for which the forborne-from provisions provide essential authority) 
insofar as the rules newly apply as a result of the classification of 
BIAS.
     Fourth, we include within the scope of our broad 
forbearance for BIAS any preexisting rules with the primary focus of 
implementing the requirements and substantive Commission jurisdiction 
in sections 201 and/or 202, including forbearing from preexisting 
pricing, accounting, billing, and recordkeeping rules. This forbearance 
would not include rules implementing our substantive jurisdiction under 
provisions of the Act from which we do not forbear that merely cite or 
rely on sections 201 or 202 in some incidental way, such as by, for 
example, relying on the rulemaking authority provided in section 
201(b). Consistent with our discussions above, this category also does 
not include our open internet rules or MTE rules. As with the rules 
identified under the first and second categories above, we do not 
forbear insofar as a provider is subject to these rules by virtue of 
some other service it provides.
     Fifth, the classification of BIAS as a telecommunications 
service could trigger certain contributions to support mechanisms or 
fee payment requirements under the Act and Commission rules, including 
some beyond those encompassed by the categories above. Insofar as any 
provisions or regulations not already covered above would immediately 
require the payment of contributions or fees by virtue of the 
classification of BIAS (rather than merely providing Commission 
authority to assess such contributions or fees) they are included 
within the scope of our forbearance. As under the first and second 
categories above, we do not forbear insofar as a provider is subject to 
these contribution or fee payments by virtue of some other service it 
provides.

III. Report and Order: Open Internet Rules

    431. The rules we adopt in the Order mark the return to the 
Commission's longstanding basic framework governing BIAS provider 
conduct to protect the open internet. We establish ``rules of the 
road'' that are straightforward and clear, prohibiting specific 
practices harmful to an open internet--blocking, throttling, and paid 
prioritization--as well as a strong standard of conduct designed to 
prevent deployment of new practices that would harm internet openness, 
and certain enhancements to the transparency rule. Our rules are 
designed to prevent BIAS providers from engaging in practices that are 
harmful to consumers, competition, and public safety. As proposed in 
the 2023 Open Internet NPRM, our approach reinstates the rules that the 
Commission adopted in 2015. We find that the temporary deviation from 
this framework, which the Commission adopted in the RIF Order, left 
consumers exposed to behavior that can hinder their ability to access--
and the Commission without recourse to protect and promote--an open 
internet. As we explained in the 2023 Open Internet NPRM, we find that 
the rules we adopt in the Order are ``consistent with numerous other 
steps the Commission has taken to ensure that this country has access 
to affordable, competitive, secure, and reliable broadband.''

A. Need for Rules

    432. We affirm our tentative conclusion from the 2023 Open Internet 
NPRM that baseline internet conduct rules for BIAS providers are 
necessary to enable the Commission to prevent and address conduct that 
harms

[[Page 45497]]

consumers and competition. BIAS is an essential service that is 
critical to so many aspects of everyday life, from healthcare and 
education to work, commerce, and civic engagement. Because of its 
importance, we conclude that rules are necessary to promote free 
expression; encourage innovation, competition, and consumer demand; and 
protect public safety. As the Commission found in both 2010 and 2015, 
BIAS providers continue to have the incentive and ability to harm 
internet openness. We find that the framework the Commission adopted in 
the RIF Order provides insufficient protection from these dangers, and 
that a safe, secure, and open internet is too important to consumers 
and innovators to leave unprotected.
1. Promoting Free Expression and Encouraging Innovation, Competition, 
and Consumer Demand
    433. The internet serves as a cornerstone for free expression, 
fostering a diverse and inclusive digital space where individuals can 
share ideas, opinions, and information without undue influence or 
interference. It promotes the exchange of diverse perspectives, 
ultimately enriching society by exposing individuals to a wide range of 
thoughts and experiences. As the Supreme Court noted in 1997, the 
internet enables any person to ``become a town crier with a voice that 
resonates farther than it could from any soapbox.'' In the 2023 Open 
Internet NPRM, we sought comment on the need for conduct rules to 
protect free expression, innovation, and investment. The record 
confirms the Commission's long-held tenet that an open internet is 
critical to facilitate the free flow of diverse speech and content, and 
serves as a platform for speech and civic engagement. Several 
commenters highlight that open internet rules would ensure that BIAS 
providers cannot discriminate against content, thereby providing a 
space for all voices, including those from diverse and minority 
backgrounds. We agree with the Communications Workers of America that a 
BIAS provider's ``ability to place restrictions on what speech is 
permitted on its platform creates a chilling effect on civic 
discourse.''
    434. In addition to protecting free expression, an open internet 
encourages competition and ensures that breakthrough innovations are 
not limited. In the 2015 Open Internet Order, the Commission recognized 
that ``innovations at the edges of the network enhance consumer demand, 
leading to expanded investments in broadband infrastructure that, in 
turn, spark new innovations at the edge.'' This self-reinforcing cycle, 
which the Commission has referred to as a ``virtuous cycle'' and which 
was a primary basis for the actions the Commission took in the 2010 
Open Internet Order and the 2015 Open Internet Order, was accepted by 
the Verizon court. The Verizon court found that ``the Commission's 
determination that internet openness fosters the edge-provider 
innovation that drives this `virtuous cycle' was . . . reasonable and 
grounded in substantial evidence,'' and that ``the Commission has 
adequately supported and explained its conclusion that, absent rules 
such as those set forth in the Open Internet Order, broadband providers 
represent a threat to internet openness and could act in ways that 
would ultimately inhibit the speed and extent of future broadband 
deployment.''
    435. In the RIF Order, the Commission did not question the 
existence of the virtuous cycle or the fact that, at least in theory, 
BIAS providers might take actions that undermine the cycle. However, 
the Commission pointed out that BIAS providers may also contribute to 
the ``virtuous cycle,'' and, without presenting any evidence or 
reasoned analysis, opined that the three potential sources of harm by 
BIAS providers to the ``virtuous cycle'' ``have been overestimated, and 
can be substantially eliminated or reduced by the more light-handed 
approach [the RIF Order] implements.''
    436. In the 2023 Open Internet NPRM, we sought comment on the 
``virtuous cycle'' and whether ``it is necessary to secure the open 
internet to preserve the virtuous cycle.'' Of the few parties that 
comment on this issue, none question the validity of the ``virtuous 
cycle'' or the fact that innovations at the edge of the network can 
increase consumer demand, which can lead to expanded investments in 
broadband infrastructure, which in turn stimulate further innovation at 
the edge. Rather, those opposing the proposed bright-line rules instead 
either argue that BIAS providers lack the incentive or ability to 
engage in activities that would undermine the ``virtuous cycle'' or 
that BIAS providers have not engaged in such activities, or they 
suggest, irrelevantly, that other entities, including large edge 
providers, transit providers, backbone providers, and CDNs can also 
affect and undermine the consumer experience. We note that, to the 
extent that other entities may have the incentive or ability to engage 
in anticompetitive activities that undermine the virtuous cycle, such 
activities are beyond the scope of this proceeding.
    437. We agree with Netflix that ``where both affiliated and 
independent content providers compete on a level playing field that 
offers the same access to terminating access networks, these companies 
are spurred to compete vigorously and to continue to improve their 
offerings by investing in quality content and technology.'' The record 
reflects wide agreement that the internet ecosystem has become more 
diverse during the past decade with the entrance of new network 
operators, new intermediaries such as CDNs and interexchange carriers, 
and new edge providers. Small and emerging edge providers constitute 
particularly dynamic drivers of innovation and are a critical part of 
the diversity of the internet ecosystem. In March 2023, 1,054,052 
business establishments in the United States (11.6% of all businesses) 
were less than one year old and 2,436,791 (26.8% of all businesses) 
were less than three years old. Although many of these companies may go 
out of business, others innovate successfully and become a major 
impetus to innovation and growth in the economy. Most of these 
businesses depend on reliable, open internet connections to build and 
scale their businesses. Research on internet-based innovation shows 
that the innovative generativity of the internet is strongly related to 
its open, transparent, and modular architecture. These technological 
design choices greatly reduce the costs of innovation for edge 
providers and hence stimulate more innovation experiments. They enable 
coordination and the realization of synergies between the participants 
in the internet ecosystem. These insights are congruent with recent 
research in innovation economics. This work shows that particularly 
important innovation drivers are (1) the contestability of a market 
(that is, the intensity of competition in the market segment and the 
competitive threats exerted by potential new entrants); (2) the 
available technological and business innovation opportunities; and (3) 
the appropriability of temporary risk premiums that reward taking the 
innovation risk. In digital ecosystems, innovation is further 
stimulated by synergies between market participants (e.g., between ISPs 
and edge providers) but it is impeded by coordination costs between 
market participants. The importance of synergies and complementarities 
in interdependent innovation processes was examined rigorously. An 
important insight from this research is that innovation is

[[Page 45498]]

stimulated in a reciprocal process, with edge provider innovation 
stimulating infrastructure innovation. In turn, infrastructure 
innovation enhances the innovation opportunities and activities of edge 
providers. The negative effects of coordination costs, such as the 
costs of adapting an application to different ISPs and the costs of 
negotiating agreements. However, this generativity can be weakened, and 
the innovation performance degraded, if individual market participants 
have incentives that impede this complementary innovation process. The 
more recent innovation research often uses the term ``complementary 
innovation'' or ``interdependent innovation'' to refer to the 
reciprocal synergies that exist in digital innovation systems. The 
notion of a virtuous cycle of innovation and investment, used in the 
2010 Open Internet Order and 2015 Open Internet Order, describes key 
features of such complementary innovation processes. The more recent 
research clarifies that several types of complementary innovation 
coexist in the advanced internet that thrive under different 
conditions. A vast set of innovation opportunities will thrive in a 
best-effort internet offering that is transparent and provides 
nondiscriminatory connectivity for edge providers and users. Emerging 
technologies such as new forms of edge computing and open radio access 
network (open RAN) will further expand these innovation opportunities. 
In all these cases, the virtuous cycle of complementary innovation 
creates synergies between innovation processes in networks, 
applications, services, and devices. While we do not disagree with 
commenters who argue that excessive regulation can stifle innovation by 
creating barriers to entry and reduce competition, we do dispute that 
the rules we adopt in the Order would constitute the type of regulation 
that would stifle innovation. If anything, the surge in innovation over 
the past 25 years underscores the success of innovators under an open 
internet. We believe this success can be attributed, at least in part, 
to the absence of any preemptive control by service providers or any 
other entities over new applications, services, or content. We agree 
with the Electronic Frontier Foundation, which asserts that an open 
internet is also essential to help new businesses find investors. As 
the Greenlining Institute explains, ``[w]ithout net neutrality rules, 
the next Amazon or YouTube may never get off the ground and an ex post 
regulatory intervention will be too little, too late.'' As discussed 
below, we find that BIAS providers have the incentive and technical 
ability to engage in activities that harm edge providers, which can 
reduce investment and innovation at the edge, which in turn can harm 
consumers and ultimately reduce incentives to invest in broadband 
infrastructure. As the Commission explained in the 2010 Open Internet 
Order, pervasive interference with the open internet would likely slow 
or even break the virtuous cycle of innovation enabled by internet, 
likely causing irreversible or very costly harms. If broadband provider 
practices chill entry and innovation by edge providers and thereby 
prevent development of the next revolutionary technology or business, 
the missed opportunity may be significant, and it may be impossible to 
restore the lost innovation, investment, and competition after the 
fact. Additionally, because the internet is a general purpose 
technology, erosion of internet openness threatens to harm innovation, 
investment in the core and at the edge of the network, and competition 
in many sectors. This can have a disproportionate effect on small, 
entering, and non-commercial edge providers that drive much of the 
innovation on the internet. Effective open internet rules can both 
prevent or reduce the risk of these harms and help to ensure the public 
has unfettered access to diverse sources of news, information, and 
entertainment, as well as an array of technologies and devices that 
enhance health, education, and the environment. Moreover, as the 
Commission explained in the 2015 Open Internet Order, such ``behavior 
[by BIAS providers to throttle or degrade edge content] has the 
potential to cause a variety of other negative externalities that hurt 
the open nature of the internet.'' The Commission went on to explain 
that ``[b]roadband providers have incentives to engage in practices 
that will provide them short term gains but will not adequately take 
into account the effects on the virtuous cycle . . . . [and] that the 
unaccounted-for harms to innovation are negative externalities [that] 
are likely to be particularly large because of the rapid pace of 
internet innovation, and wide-ranging because of the role of the 
internet as a general purpose technology.''
    438. Thus, the conduct that we seek to prevent can not only harm 
edge providers, which will reduce their incentives to invest and 
innovate, but can also harm consumers. This harmful conduct may even 
reduce other BIAS providers' incentives to invest in broadband 
infrastructure. Overall, the record before us corroborates the need for 
a balanced approach to safeguard edge innovation while allowing 
entrepreneurial experimentation to advance innovation. The Order 
achieves this balance by establishing a framework of bright-line rules 
for BIAS. These rules offer guardrails to safeguard important open 
internet principles that will maintain edge-provider innovation and 
protect the smallest and most vulnerable edge providers. At the same 
time, the ability of BIAS providers to offer specialized and innovative 
new services is preserved by allowing BIAS providers to use appropriate 
network management, offer enterprise services, and offer non-BIAS data 
services. We believe that, overall, the benefits of this balanced 
approach, which secures an open internet while allowing flexibility for 
edge and BIAS provider innovation, outweigh its costs. As such, we 
conclude that the protections we adopt in the Order will help to 
facilitate ``the development of diverse, content, applications, and 
services,'' and enable ``a virtuous cycle of innovation.''
2. Protecting Public Safety
    439. The conduct rules that we adopt in the Order are necessary to 
prevent and mitigate harms to public safety that could result from 
blocking, throttling, paid prioritization, and other actions that have 
the potential to impair public safety communications. These conduct 
rules may also support consumer use of telehealth service and remote 
healthcare monitoring, such as through connected devices, by ensuring 
consumers can continue to access these services without the threat of 
blocking, throttling, or other degradation. The prohibited conduct 
could make it more difficult for the public to receive emergency 
services and critical information and could impair the ability of first 
responders to communicate during emergency situations. As discussed 
above, one of the Commission's fundamental obligations is to advance 
public safety. The Mozilla court highlighted this obligation and 
recognized its significance, emphasizing that ``whenever public safety 
is involved, lives are at stake.'' The court went on to note that 
``[a]ny blocking or throttling of [safety officials'] internet 
communications during a public safety crisis could have dire, 
irreversible results.'' Similarly, in the 2015 Open Internet Order, the 
Commission recognized that paid prioritization and peering 
disagreements can negatively affect public safety communications 
traveling over the same networks.

[[Page 45499]]

    440. Above, we discuss the wide range of public safety 
communications and applications that rely on broadband networks and the 
related national security concerns impacting broadband services, 
providers, and critical infrastructure. The CPUC points out that first 
responders use ``communications tools to respond to life-threatening 
situations,'' such as by ``notify[ing] residents and businesses by 
mobile phone, text message, email and social media with time-sensitive, 
geographically specific emergency notifications.'' We agree with the 
CPUC that the ability of first responders to ``communicate with the 
public in a timely manner is, literally, a matter of life and death.''
    441. We conclude that open internet conduct rules are necessary to 
support public safety communications by preventing ``harmful practices 
that could impede emergency response and critical information 
sharing.'' The D.C. Circuit found that ``the harms from blocking and 
throttling during a public safety emergency are irreparable . . . 
[because] people could be injured or die.'' Santa Clara asserts that 
``such practices could interfere with the communications about the 
existence of a fire line or evacuation zone, the location of flooding, 
or the location of criminal suspects or missing individuals, among many 
other critical and time-sensitive communications.''
    442. Several commenters emphasize the importance of the conduct 
rules for public safety. For example, the AICC contends that the 
proposed ``bright-line rules would serve a vital role in protecting 
public safety'' by preventing ``interruptions in signal transmissions 
between customers and the monitoring centers which serve them.'' New 
America's Open Technology Institute agrees, stating that ``it is 
imperative that the Commission . . . regulate BIAS . . . and take 
enforcement action in the interest of public safety through Title II 
classification and the creation of conduct standards.'' The CPUC also 
agrees, arguing that ``strong, non-discriminatory rules are needed to 
ensure that providers of emergency services or public safety agencies 
are not impaired in providing comprehensive, timely information to the 
public in a crisis.''
    443. We also agree with commenters who assert that the conduct 
rules will provide other public safety benefits beyond emergency 
communications. As the CPUC points out, ``[t]he `Internet of Things' is 
deeply intertwined with many facets of society, including critical 
infrastructure such as the energy grid and water pipelines.'' The CPUC 
contends that ``[a]llowing ISPs to engage in paid prioritization deals 
with energy suppliers'' could have detrimental impacts on demand 
response programs that are vital to ``California's battle against 
catastrophic wildfires.'' The CPUC further explains that, ``[s]ince 
demand response relies on fast, instantaneous communication to the 
customer, non-discriminatory Open internet rules are vital to 
dispatching demand response during times of extreme grid stress.'' The 
CPUC concludes that ``it is critical to energy safety and reliability 
that internet communications . . . not be subject to paid 
prioritization delays, payment demands, or service degradation due to 
priority accorded to other users who pay extra.''
    444. We conclude that the conduct rules will benefit public safety 
as proactive actions to protect life and property by preventing 
potential harms from occurring, as opposed to the Commission solely 
taking enforcement actions after the harms have already occurred. Santa 
Clara recognizes the benefits of the conduct rules, which ``impose 
requirements on ISPs ex ante, that is, before their blocking, 
throttling, or unreasonable interference can hinder or prevent time-
sensitive, life-saving public safety communications from reaching their 
destinations.'' In addition, Santa Clara reiterates that ``ex post 
remedies cannot adequately protect against or compensate for the harms 
that ISP interference can cause to public safety.'' Free Press agrees 
because, ``[w]ithout agency authority for ex post enforcement (or 
authority for ex ante rules) the Commission cannot do its job to 
promote public safety.'' INCOMPAS also agrees with the need for ex ante 
rules, on the basis that the Commission's ``fundamental obligation to 
promote and protect public safety . . . includes ensuring that 
emergency situations are prevented, mitigated, and/or handled 
immediately.'' We agree that ``[t]he harm caused by blocking and 
throttling [public safety] communications simply cannot be remedied 
after the fact.'' We also agree that the conduct rules are needed to 
enable the Commission to ``deal with public safety issues before a 
public safety situations arises--not afterwards.'' Notably, the Mozilla 
court expressed skepticism about the Commission's contention in the RIF 
Order that post-activity enforcement is a suitable method to address 
harmful conduct in the public safety context, finding that ``the harm 
to the public cannot be undone'' by ex post enforcement. For these 
reasons, we conclude that the conduct rules are necessary because ex 
ante regulations would provide better public safety protections than an 
ex post enforcement framework.
    445. Some commenters also contend that the conduct rules would have 
a limited impact on public safety because public safety entities 
heavily rely on enterprise-level dedicated networks, which fall outside 
of the scope of reclassification. As explained above, public safety 
officials' reliance on BIAS has become integral to their essential 
functions and services, aside from their reliance on enterprise-based 
systems. We agree with INCOMPAS's analysis in its petition for 
reconsideration that ``[t]he Commission should not ignore the effects 
of reclassifying BIAS on public safety by conflating the idea that non-
BIAS services are also used to address public safety issues.''
    446. We reject the argument of some commenters that the conduct 
rules are unnecessary due to the lack of evidence of public safety 
harms. Multiple commenters refute these arguments. For example, New 
America's Open Technology Institute cites the Mendocino Complex Fire in 
2018 as evidence that, ``in the absence of general conduct standards 
and rules against blocking, throttling, or prioritization, ISP behavior 
did directly impact public safety efforts.'' New America's Open 
Technology Institute states that ``the full extent of these impacts . . 
. is unknown'' but cites to other comments to explain that ``it is 
difficult, if not impossible, for governments to identify harms caused 
by violations of net neutrality principles.'' INCOMPAS notes that, with 
regard to the Santa Clara County incident, ``there [was] no agency 
authority to determine whether [the service provider] violated the 
rules, and that in itself is dangerous for public safety.'' We agree 
with INCOMPAS that the Commission needs the authority to address public 
safety matters through ex ante rules before a public safety situation 
arises.
    447. Commenters reach differing conclusions regarding the 
significance of the 2018 Mendocino Complex Fire. Commenters who support 
reclassification point to the wildfire incident as an example 
demonstrating the need for the open internet rules and for the 
Commission to have greater authority to examine and investigate such 
incidents, and ultimately, to prevent future harms from occurring. 
Without such rules, these commenters warn, BIAS providers will engage 
in conduct that could result in harm to public safety, and that 
voluntary commitments are insufficient to ensure

[[Page 45500]]

public safety. Commenters who oppose reclassification contend that the 
wildfire incident is irrelevant to, and an unpersuasive example used in 
support of, reclassification and the open internet rules, because ``the 
data plan at issue was marketed to government users, and therefore not 
covered by the FCC's 2015 rules, nor by the definition of BIAS 
contained in the NPRM'' and that Verizon's actions would not have 
violated the 2015 Open Internet Order. In other words, they state that 
the type of data use plan that Verizon offered and that the Santa Clara 
fire department purchased did not violate the 2015 Open Internet Order. 
Opponents also argue that the Santa Clara fire department did not 
purchase a data plan that was appropriate for their needs. In our view, 
the 2018 Mendocino Complex Wildfire incident demonstrates that given 
the high stakes at issue--the loss of life and property--reliance on 
the free market alone is insufficient in the area of public safety.
    448. We also disagree with commenters that argue open internet 
rules could deter providers from blocking or throttling access to 
websites that pose a threat to public safety for fear of violating the 
rules. We find that these concerns lack merit because the rules we 
adopt in the Order only apply to lawful content and the use of non-
harmful devices. As was the case with the 2015 open internet rules, 
transfers of unlawful content or unlawful transfers of content are not 
covered by the no-throttling and no-blocking rules.
    449. Public Safety Accessibility for People with Disabilities. We 
find that the adoption of the open internet conduct rules will allow 
the Commission to ensure that people with disabilities both have access 
to essential information and can communicate with public safety 
personnel during emergencies.
    450. Many people with hearing- and speech-based disabilities rely 
on data-intensive, latency-sensitive video applications, such as VRS 
and other types of internet-based relay services, to communicate with 
public safety personnel. In the 2023 Open Internet NPRM, we tentatively 
concluded that such data-intensive, latency-sensitive applications 
would be at a higher risk of being degraded by BIAS providers during 
emergency situations. Throttling or paid prioritization of certain 
services over others has the effect of degrading the network carrying 
individuals with hearing and speech disabilities' essential video 
communications, and discriminating against them by preventing them from 
communicating in the same manner as individuals without disabilities. 
We also tentatively concluded in the 2023 Open Internet NPRM that the 
proposed conduct rules would prevent this degradation of such 
communications. In their comments, both the CPUC and the Equity 
Advocates support this finding and argued that the application of 
``strong net neutrality protections'' to BIAS networks would benefit 
people with disabilities. Applying the prohibitions on blocking, 
throttling, and paid prioritization to BIAS will ensure that 
individuals with hearing and speech disabilities who need to use data-
intensive video applications have access to reliable and accessible 
means to communicate with emergency service operators. As a result of 
the rules prohibiting throttling and blocking of lawful content, any 
person who uses internet-based relay services to communicate with 
emergency management agencies can be confident that they can do so 
without experiencing a degraded network connection. Additionally, the 
general conduct rule we adopt will ensure that BIAS providers do not 
unreasonably interfere with, disadvantage, or discriminate against the 
internet-based relay services that individuals with disabilities use 
for emergency communications.
    451. The conduct rules prohibiting throttling and blocking, and 
governing the general conduct of BIAS providers will ensure that people 
with disabilities have access to essential information during 
emergencies. As Santa Clara raises in its comments, cities, localities, 
states, and other entities operating during emergencies increasingly 
rely on BIAS networks to send out essential information through social-
media, email, and other internet-supported channels. For some people 
with disabilities, accessing information through these internet-
supported channels may be their preferred way of receiving accessible 
information alerting them, for example, of a wildfire or a hurricane. 
The same populations may use BIAS to communicate to friends and 
families that they have evacuated or taken other safety precautions 
during emergencies. We agree with commenters that it is essential for 
members of the disability community to be able to receive information 
and for emergency service organizations to be able to transmit public 
safety information. In sum, the conduct rules that we adopt in the 
Order will ensure that people with disabilities, especially those 
individuals with hearing or visual disabilities, can access essential 
public safety information.
3. BIAS Providers' Incentive and Ability To Harm Internet Openness
    452. Based on the record in this proceeding, and consistent with 
the findings of the Commission in both the 2010 Open Internet Order and 
the 2015 Open Internet Order, we find that open internet rules are 
needed because BIAS providers have the economic incentive and technical 
ability to engage in practices that pose a threat to internet openness 
and have engaged in such practices in the past.
    453. As explained below, BIAS providers may have incentives to 
block, throttle, or otherwise degrade service to specific edge 
providers, classes of edge providers, or end users. They also have 
incentives to increase revenues by charging edge providers in addition 
to end users. And, if BIAS providers can charge for prioritized access, 
BIAS providers will have incentives to degrade the quality of service 
to non-prioritized traffic classes and users.
    454. In the 2010 Open Internet Order, the Commission explained that 
BIAS providers may face at least three types of incentives to reduce 
the current openness of the internet. We find that this analysis 
continues to be correct, even after accounting for developments in the 
broadband ecosystem and advances in broadband technology over the last 
decade.
    455. First, a BIAS provider may have incentives to block, degrade, 
or otherwise disadvantage services offered by specific edge providers 
or classes of edge providers by controlling the transmission of network 
traffic over the provider's broadband connection. These incentives are 
particularly strong if a third party's services compete with the BIAS 
provider's own revenue-generating offerings. For example, if a large, 
vertically integrated BIAS provider offers video streaming and other 
content services, such as cable television service, in competition with 
content offered by edge providers, it would have an incentive to 
discriminate against those edge providers. Unless safeguards are in 
place, a vertically integrated BIAS provider may have incentives to 
interfere with the transmission of such competing services. Similarly, 
a vertically integrated BIAS provider may have an incentive to limit 
the entry of new content or application providers that may compete with 
its own offerings in the future. The record suggests that BIAS 
providers have engaged in such behavior.
    456. Such incentives also exist if a BIAS provider has contractual 
arrangements with a third-party edge provider in which the third-party 
pays

[[Page 45501]]

the ISP to terminate traffic. Commissioner Carr in his dissent suggests 
that, because a small BIAS provider is unlikely to block access to 
Netflix, this suggests that regulation is unnecessary. This argument 
fails for a number of reasons, most importantly because, if a BIAS 
provider, regardless of its size, provides a service that competes 
directly with an edge provider's service (or is affiliated with a 
provider of a competing service or has a contractual relationship with 
such a competing provider), that BIAS provider will have an incentive 
to block or degrade access to the competing provider's service in order 
to increase its own profits. Whether a small BIAS provider in Louisiana 
could provide a service comparable to Netflix's may or may not be 
possible, but that does not mean there would not be other services and 
edge providers for which a small provider might have a stronger 
incentive to degrade access. In this case, the BIAS providers would 
have an incentive to interfere with and degrade the quality of the 
transmission provided to non-affiliated content providers. Some 
commenters contend that, in both cases (of vertical integration of the 
BIAS provider and contractual agreements with third-party content 
providers), paid peering and interconnection agreements may be used to 
raise rival content providers' costs through inefficiently high 
payments and that such practices will negatively affect the internet 
ecosystem.
    457. Second, a BIAS provider may have an incentive to charge 
specific edge providers or classes of edge providers for access or 
prioritized access to the provider's end users. A BIAS provider could 
have an incentive to charge inefficiently high fees to edge providers 
because the BIAS provider is typically an edge-provider's only option 
for reaching a particular end user. Thus, as the Commission noted in 
the 2015 Open Internet Order, BIAS providers have the ability to act as 
gatekeepers. The additional cost associated with these fees, in turn, 
would reduce the incentives of edge providers to innovate. Harms from 
such inefficiently high charges could be particularly impactful because 
many edge innovations generate large benefits for the internet as a 
whole (what economists call positive spillover effects). Reduced edge 
innovation activity therefore may cause harms for the internet 
ecosystem that extend beyond an individual edge provider.
    458. Third, if a BIAS provider can profitably charge edge providers 
for prioritized access to end users, it may have an incentive to 
strategically degrade, or decline to maintain or increase, the quality 
of service to non-prioritized uses and users in order to raise the 
profits from selling priority access. And even though the quality of 
broadband access generally has improved over time, as reflected in 
higher download and upload speeds, a BIAS provider might withhold or 
decline to expand capacity in order to ``squeeze'' and degrade 
nonprioritized traffic, thus increasing network congestion.
    459. We note, as the Commission did in both the 2015 Open Internet 
Order and the 2010 Open Internet Order, that BIAS providers need not 
possess monopoly power over end users in order to engage in conduct 
that harms edge providers, consumers, and the open internet. We 
recognize, however, that BIAS providers generally possess some degree 
of market power. As discussed below this market power generally arises 
from product differentiation and a limited choice among BIAS providers, 
significant switching costs, and customer inertia, though the incentive 
and ability to engage in such conduct is likely exacerbated by an 
increase in market power. As the Commission explained in the 2010 and 
2015 Open Internet Orders, a ``broadband provider's incentive to favor 
affiliated content or the content of unaffiliated firms that pay for it 
to do so, its incentive to block or degrade traffic or charge edge 
providers for access to end users, and its incentive to squeeze non-
prioritized transmission will all be greater if end users are less able 
to respond by switching to rival broadband providers.'' Similarly, in 
the 2015 Open Internet Order, the Commission observed that ``a 
broadband provider's incentive to favor affiliated content or the 
content of unaffiliated firms that pay for it to do so, to block or 
degrade traffic, to charge edge providers for access to end users, and 
to disadvantage non-prioritized transmission all increase when end 
users are less able to respond by switching to rival broadband 
providers.''
    460. In Verizon, the D.C. Circuit found that the Commission 
``adequately supported and explained'' that, absent open internet 
rules, ``broadband providers represent a threat to internet openness 
and could act in ways that would ultimately inhibit the speed and 
extent of future broadband deployment.'' And in the 2015 Open Internet 
Order, the Commission generally adopted the analysis underlying the 
Commission's 2010 Open Internet Order. Based on the record in this 
proceeding, we continue to find the analysis contained in both the 2010 
and 2015 Open Internet Orders persuasive.
    461. Opponents of open internet regulation present several 
arguments as to why BIAS providers will not have the incentive or 
ability to engage in conduct that harms the open internet. As discussed 
below, we find that none of these arguments are well-founded. First, 
opponents argue that BIAS providers lack the incentive to block, 
throttle, or otherwise disadvantage unaffiliated edge providers because 
they face effective competition and because end users can switch to 
other service providers. The Commission has acknowledged that the 
gatekeeper role of BIAS providers could be ``mitigated if a consumer 
could easily switch broadband providers.'' However, there are several 
problems with the opponents' argument in practice. While the number of 
BIAS providers is increasing and BIAS providers are expanding their 
networks, many consumers still lack a choice of BIAS providers or, 
where they do have a choice, they have a choice of only two providers 
and/or the services offered by competing providers are often not close 
substitutes. The 2024 Section 706 Report shows that as of year-end 
2022, 37.4% of households lived in areas where only one provider 
offered wireline or terrestrial fixed wireless broadband internet 
access services at 100 Mbps download and 20 Mbps upload speeds (100/20 
Mbps), the new benchmark for defining advanced telecommunications 
capability, and the Commission's fixed speed benchmark for broadband, 
while 36.6% of households lived in areas with two providers offering 
100/20 Mbps service, and only 18.2% lived in areas where they had a 
choice of three or more providers offering 100/20 Mbps service. 7.9% of 
households did not have any terrestrial fixed broadband provider 
offering 100/20 Mbps service. The figures in the text include fixed 
wireless services at 100/20 Mbps. If fixed wireless is excluded, then 
49.8% of households had a choice of only one provider offering 100/20 
Mbps, 34.9% of households had a choice of two providers offering these 
speeds, and only 5.1% of households had a choice of three or more 
providers offering 100/20 Mbps. We reach no conclusion as to whether, 
or how close, a substitute fixed wireless is for wireline fixed 
broadband, though we note that subscription rates for fixed wireless 
are only 4%, which may suggest that fixed wireless is not a close 
substitute for fixed wireline service at 100/20 Mbps. NCTA takes issue 
with the Commission's reliance on

[[Page 45502]]

these data, which represent the most recent Commission-analyzed 
competition data, claiming that the June 2023 Broadband Data Collection 
data demonstrate ``existing competition is already sufficient to 
prevent open internet harms while it is driving increased investment 
and deployment.'' As discussed above, we do not rest our findings about 
BIAS providers' incentives and abilities to harm internet openness 
solely or even primarily on the competitive state of the marketplace, 
though to be sure, these incentives are influenced by a consumer's 
ability to switch to a competitive provider. In any event, even if we 
take NCTA's June 2023 data calculations at face value, we find that the 
incremental increases in competition do not meaningfully change our 
incentive and ability analysis. NCTA also submits that the Commission 
should account for wireless and low Earth orbit satellite providers in 
its competitive analysis. However, the Commission has consistently 
found that fixed and mobile broadband services are not full 
substitutes, and given the nascent availability of low Earth orbit 
satellite services, we find it is premature to make a determination 
regarding the potential substitutability of these services for fixed 
terrestrial service. Furthermore, with respect to NCTA's claims 
regarding the impact of future potential competition, we find that our 
analysis is best conducted based on the current state of the 
marketplace rather than speculation regarding future BIAS deployment. 
At the Commission's long-term speed goal of 1,000 Mbps download and 500 
Mbps upload, 34.4% of households lived in areas with one provider of 
such service, 3.5% lived in areas with two providers, and only 0.2% 
lived in areas offering a choice of three or more providers. To report 
service availability at the long-term speed goal, the Commission uses 
BDC data reporting 940GB download and 500 Mbps upload. In most 
locations, end users also have access to satellite and mobile broadband 
services. However, the Commission has found that fixed and mobile 
broadband services are not full substitutes to each other and both 
services are necessary to ensure that all Americans have access to 
advanced telecommunications capability. Both have different service 
capabilities and use cases, and because these services are complements, 
and many consumers subscribe to both, which means that the incentives 
to degrade one of these services would not fully affect consumers' use 
of the other service. Further, the 2024 Section 706 Report observed 
that satellite services have a relatively low subscription rate despite 
their apparent widespread service availability, and satellite capacity 
limits the number of subscribers that can be served without service 
degradation.
    462. Several commenters argue that the development of cellular FWA 
as an alternative to more traditional fixed BIAS is an example that 
broadband deployment, innovation, and competition are flourishing, and 
that the Commission's proposed rules are unnecessary. Cellular FWA, the 
subclass of FWA offered using 4G or 5G mobile technologies, is a 
relatively new residential fixed wireless broadband internet access 
service offered by nationwide providers AT&T, T-Mobile, and Verizon. As 
USTelecom notes, ``[n]ew 5G fixed wireless offerings provide a 
competitive alternative to . . . wireline offerings.'' INCOMPAS and 
Free Press, conversely, suggest that claims of cellular FWA's 
competitive effects on the fixed BIAS market may be exaggerated, 
arguing that the fixed BIAS market is highly concentrated and requires 
open internet regulation. While Free Press acknowledges fixed wireless 
as a potential source of competition for home broadband, it argues in 
favor of the need to reclassify broadband as Title II ``regardless of 
how competitive the market is.'' While we acknowledge the availability 
of cellular FWA as an alternative to wired home internet offerings, we 
note that the development of this technology--and any resulting impact 
on competition--is not sufficient by itself to outweigh our concerns 
regarding BIAS providers' incentives.
    463. A second response to the argument that BIAS providers lack the 
incentive to engage in conduct that harms edge providers is that even 
where consumers face a choice among BIAS providers that are close 
substitutes, they likely face high switching costs. The record shows 
broad support for the relevance of switching costs in reducing the 
intensity of competition. Other commenters emphasize that competition 
among BIAS providers has reduced switching costs and increased customer 
choice options. While we recognize that these competitive forces may 
exist to lower switching costs for some consumers in some areas, many 
areas and groups remain for whom switching costs remain high. As the 
Commission explained in the 2015 Open Internet Order, consumers may 
face ``high upfront device installation fees; long-term contracts and 
early termination fees; the activation fee when changing service 
providers; and compatibility costs of owned equipment not working with 
the new service.'' In addition, BIAS providers can use bundling 
strategies to increase switching costs.
    464. Third, even where a BIAS provider degrades the quality of an 
edge provider's service to the extent that it is noticeable to the 
consumer, the consumer may not be able to determine whether the poor 
quality is due to the BIAS provider or to the edge provider. Consumers 
often lack the information needed to understand how the practices of 
their current BIAS provider may affect their user experience and are 
confused by the complexity of multifaceted pricing plans and discount 
offers. This uncertainty reduces consumers' willingness to switch, 
solidifying the gatekeeper position of BIAS providers, and weakening 
the checks provided by competing providers.
    465. Another argument raised by opponents of open internet rules is 
that BIAS providers will not have the incentive to degrade or 
disadvantage edge providers to the extent that BIAS and edge services 
are complements. We find that this argument does not always hold. For 
example, if a BIAS provider is vertically integrated with a content 
provider or has a contractual relationship with an edge provider that 
competes directly against other edge providers, then the BIAS provider 
may have an incentive to block or degrade access to unaffiliated edge 
providers. Similarly, if a BIAS provider sees an edge provider as a 
potential future competitor in an upstream market, it may have the 
incentive to discriminate in providing access. Finally, each BIAS 
provider only accounts for how its actions impact its own profits and 
ignores the effect it has on other BIAS providers and the broader 
internet ecosystem. As a result, each individual BIAS provider's 
profit-maximizing decision, when aggregated across all BIAS providers, 
can be harmful. For example, an individual BIAS provider may find 
charging edge providers a small amount increases its profits. To the 
extent that charge leads edge providers to degrade output, the BIAS 
provider would only account for the impact on its own customers, but 
not the impact on customers of other BIAS providers. While the BIAS 
provider might use some of its revenue from the edge providers to 
compensate its own customers and negate the harm, other users of the 
edge providers' services would still be harmed by the charge. While the 
harm caused when a single BIAS provider takes such action may be small, 
all BIAS providers have an incentive to behave this way, substantially 
harming edge provision.

[[Page 45503]]

    466. Opponents of the proposed open internet rules further argue 
that a supposed lack of examples of BIAS providers blocking or 
throttling edge content proves that such rules are not needed. We find 
this argument unpersuasive. As an initial matter, we note that open 
internet rules and active enforcement of such rules have been in effect 
nearly continuously in some form since 2010. Following the RIF Order, 
various states began enacting their own open internet rules, and given 
the national scope of many BIAS providers and services, such State 
rules provided at least some constraint on the ability of BIAS 
providers to engage in behavior that would harm internet openness. 
Indeed, AT&T abandoned its sponsored data plan that zero-rated 
affiliated DirecTV video as a direct result of the passage of the 
California open internet regulations. AT&T stated that, ``[g]iven that 
the internet does not recognize state borders, the new law not only 
ends our ability to offer California customers such free data services 
but also similarly impacts our customers in states beyond California.'' 
As we explained above, BIAS providers continue to have strong 
incentives and the ability to favor some edge provider content and to 
discriminate against other content, especially when a BIAS provider is 
vertically integrated, or has contractual relationships, with edge 
provider content that competes with unaffiliated content. Therefore, 
the perceived lack of examples of BIAS providers engaging in practices 
that harm internet openness is more likely evidence in favor of the 
effectiveness of open internet regulation and enforcement rather than 
evidence of a lack of incentives for BIAS providers to engage in such 
activities.
    467. However, there have been repeated cases of discriminatory 
conduct that often required Commission action to resolve and would 
likely be addressed by the rules we adopt in the Order. The record and 
independent research document a list of incidences, such as blocking, 
throttling, and other forms of conduct that harm edge providers. This 
includes the blocking by Madison River Communications of VoIP service 
provided by Vonage; the throttling and blocking of peer-to-peer (P2P) 
traffic by cable providers; the blocking of video calling on the Apple 
FaceTime app by AT&T and, as discussed below, recent evidence that 
major BIAS providers are currently engaged in throttling. BIAS provider 
RCN settled a class action lawsuit related to its throttling of P2P 
traffic on its network. RCN denied any wrongdoing, but it acknowledged 
that in order to ease network congestion, it targeted specific P2P 
applications. A 2008 study by the Max Planck Institute revealed 
significant blocking of BitTorrent applications in the United States. 
Comcast and Cox were both cited as examples of providers blocking 
traffic. AT&T initially restricted use of Apple's FaceTime application 
to times when the end user was connected to Wi-Fi and thus to another 
BIAS provider. In addition, there have been many instances over the 
past decade where BIAS providers changed the traffic that was requested 
by their users, including by redirecting search requests to websites 
chosen by the BIAS provider in exchange for payments; injecting 
JavaScript code into traffic, raising security concerns; adding unique 
tracking IDs to web requests, raising privacy concerns; and stripping 
email encryption requests, raising security and privacy concerns.
    468. The RIF Order asserted that there are only a few examples of 
BIAS providers engaging in practices harmful to internet openness, and 
that proponents of the 2015 Open Internet Order ``relied on purely 
speculative threats.'' It argued that, in a holistic view, both BIAS 
and edge providers ``are important drivers of the virtuous cycle'' of 
investment and innovation, and that regulatory analysis must examine 
this two-sided market interaction. The RIF Order then concludes that, 
seen through a two-sided market lens, BIAS providers ``face material 
competitive constraints.'' Furthermore, it contended that the 
terminating monopoly problem forces BIAS providers to compete for 
subscribers, thus creating downward price pressure for end users. 
Moreover, it claimed that smaller BIAS providers cannot exercise market 
power against large edge providers. Finally, the RIF Order argued that 
positive externalities associated with the general-purpose technology 
internet and their regulatory implications were not substantiated by 
commenters who supported the 2015 Open Internet Order's approach and 
thus considered their support of the application of Title II regulation 
to all BIAS providers ``unreasonable and unreasoned.''
    469. As our analysis in this section shows, these arguments are not 
persuasive. Although it is correct that both BIAS and edge providers 
provide impetus for innovation, the interests of BIAS providers and 
edge providers often conflict with each other. BIAS providers have 
incentives to disadvantage competing edge providers and edge providers 
that might offer competing services in the future. And as discussed 
above, even where end users have competitive choices, they generally 
face significant switching costs and often lack the ability to identify 
when their BIAS provider is degrading the quality of particular edge 
services. Consequently, even from a two-sided-market perspective, the 
interactions between each side of the market are not well aligned. 
Finally, externalities deserve serious consideration as they imply that 
the decentralized decisions of BIAS providers and edge providers can 
have undesirable sectoral outcomes, even when BIAS providers have no 
incentives to favor their own operations. For example, if a BIAS 
provider imposes an access fee on an edge provider, it is only 
considering the effect of such a charge on its own profits, and not the 
potential reduced edge provider innovation and investment caused by the 
new cost imposed on the edge provider. A BIAS provider's mere 
exploitation of its existing market power will reduce edge provider 
investment, a harm the BIAS provider will only account for to the 
extent it reduces its own profits, ignoring the damage to the broader 
internet ecosystem.
4. The RIF Order's Framework Is Insufficient To Safeguard and Secure 
the Open Internet
    470. We find that framework in the RIF Order does not adequately 
protect consumers from the potential harms of BIAS provider misconduct. 
As discussed above, BIAS providers have the incentive and technical 
ability to engage in conduct that undermines the openness of the 
internet. In 2018, when the Commission repealed the open internet 
conduct rules, the Commission asserted that a modified transparency 
rule, combined with the effects of competition, would prevent BIAS 
provider conduct that might threaten the internet's openness. 
Notwithstanding this conclusion, the Commission found that ``[i]n the 
unlikely event that ISPs engage in conduct that harms internet 
openness,'' preexisting antitrust and consumer protection laws will 
protect consumers. In the RIF Order, the Commission further found that 
even if the conduct rules adopted by the Commission in 2015 provided 
``any additional marginal deterrence,'' those benefits were not worth 
the costs. We believe that this framework is insufficient to safeguard 
and secure the open internet.
    471. While the D.C. Circuit found the RIF Order's framework to 
represent a reasonable policy view, the court was skeptical of the 
Commission's analysis. Even while upholding the Commission's reliance 
on consumer protection and

[[Page 45504]]

antitrust law to protect the open internet in Mozilla, the court 
observed that the RIF Order's ``discussion of antitrust and consumer 
protection law is no model of agency decisionmaking.'' As the court 
explained, although ``[t]he Commission theorized why antitrust and 
consumer protection law is preferred to ex ante regulations [it] failed 
to provide any meaningful analysis of whether these laws would, in 
practice, prevent blocking and throttling.'' Consequently, although 
``the Commission opine[d] that `[m]ost of the examples of net 
neutrality violations discussed in the [2015 Open Internet Order] could 
have been investigated as antitrust violations,' '' the RIF Order 
``fail[ed] to explain what, if any, concrete remedies might address 
these antitrust violations.'' The court found it ``concerning that the 
Commission provide[d] such an anemic analysis of the safety valve that 
it insists will limit anticompetitive behavior among broadband 
providers.''
    472. Consistent with the D.C. Circuit's skepticism of the RIF 
Order's approach, we find that the consumer protection and antitrust 
laws, even combined with transparency requirements, are insufficient to 
protect against blocking, throttling, and other conduct that harms the 
open internet. We believe that the approach we adopt in the Order, 
based on the 2015 Open Internet Order, is consistent with a light-touch 
regulatory framework to protect internet openness. Even while upholding 
the RIF Order, the D.C. Circuit was ``troubled by the Commission's 
failure to grapple with the fact that, for much of the past two 
decades, broadband providers were subject to some degree of open 
internet restrictions,'' and we aim to return to the Commission 
understanding that existed from the 2005 Internet Policy Statement 
through the repeal of the 2015 Open Internet Order in 2017.
    473. As an initial matter, we find the RIF Order's reliance on 
transparency as a deterrent for problematic practices to be 
insufficient to protect consumers and edge providers from BIAS provider 
misconduct. We affirm our tentative conclusion from the 2023 Open 
Internet NPRM that there are types of conduct, such as blocking, 
throttling, and traffic discrimination, that require ex ante 
intervention to prevent their occurrence in the first instance. We 
agree with those commenters that argue it is not enough for the 
Commission to require that BIAS providers disclose their policies on 
these network practices in the commercial terms of their service 
offerings because it does not restrict BIAS providers from engaging in 
harmful behavior. We conclude that a comprehensive set of conduct 
rules, which includes a transparency element, is required to protect 
consumers from harmful BIAS provider conduct, and that the open 
internet rules we adopt in the Order, including bright-line rules, are 
necessary to safeguard and secure the open internet. As discussed 
above, we find that: (1) BIAS providers may have the incentive to 
engage in conduct that harms edge providers and the open internet even 
where they lack market power over end users; and (2) contrary to the 
claims of some commenters, there have been several instances of conduct 
that the Commission felt a need to address and correct, despite the 
fact that there were open internet rules in place.
    474. Furthermore, based on the record in this proceeding, we find 
that the RIF Order's reliance on the DOJ and the FTC for enforcement of 
the consumer protection and antitrust laws is unlikely to provide 
sufficient deterrence to BIAS providers from engaging in conduct that 
may harm consumers, edge providers, and the open internet. Both the DOJ 
and the FTC have authority to enforce the Federal antitrust laws, and 
particularly sections 1 and 2 of the Sherman Act. Section 1 of the 
Sherman Act makes illegal ``[e]very contract, combination . . . , or 
conspiracy in restraint of trade . . . among the several States,'' 
while section 2 prohibits monopolization, attempts to monopolize, or 
combinations or conspiracies to monopolize ``any part of the trade or 
commerce among the several States.'' In the 2010 and 2015 Open Internet 
Orders, the Commission found that it was necessary to adopt certain 
rules to protect the openness of the internet and that sole reliance on 
enforcement of the antitrust laws by the DOJ and FTC was insufficient 
to protect edge providers, consumers, and the open internet. In the RIF 
Order, the Commission reconsidered and concluded that conduct that 
harms the openness of the internet was unlikely, and that other legal 
regimes--particularly antitrust law and section 5 of the Federal Trade 
Commission Act (FTC Act)--were sufficient to protect consumers.
    475. We disagree with commenters who argue that existing consumer 
protection and antitrust laws provide adequate protection against the 
harms the open internet rules we adopt in the Order seek to prevent. To 
begin with, the FTC's section 5 authority does not apply to ``common 
carriers subject to'' the Communications Act, so if BIAS providers are 
properly classified as common carriers, section 5 does not apply at 
all. With respect to antitrust oversight, it is not clear that all 
conduct that could harm consumers and edge providers would constitute 
an ``unfair method of competition'' under section 5 of the FTC Act or a 
violation of section 1 or 2 of the Sherman Act. The FTC goes on to 
explain that conduct that violates section 5 includes practices 
``deemed to violate the antitrust laws,'' ``conduct deemed to be an 
incipient violation of the antitrust laws,'' and ``conduct that 
violates the spirit of the antitrust laws,'' but none of the examples 
cited by the FTC clearly address the types of conduct the open internet 
rules seek to prohibit. For example, if a vertically integrated BIAS 
provider blocked or throttled the content of a particular edge provider 
with which it competed in the content market, it is not clear whether 
such conduct would constitute a violation of section 2 of the Sherman 
Act. It is well settled that there are two elements to the offense of 
unlawful monopolization under section 2 of the Sherman Act: ``(1) the 
possession of monopoly power in the relevant market; and (2) the 
willful acquisition or maintenance of that power as distinguished from 
growth or development as a consequence of a superior product, business 
acumen, or historic accident.'' As the Commission has repeatedly 
explained, however, it is not necessary for a BIAS provider to have 
``market power with respect to end users'' for it to be able to engage 
in conduct that harms edge providers, the open internet, and consumers. 
This conclusion was accepted and affirmed by the D.C. Circuit in 
Verizon, where it stated:

    Broadband providers' ability to impose restriction on edge 
providers does not depend on their benefiting from the sort of 
market concentration that would enable them to impose substantial 
price increases on end users--which is all the Commission said in 
declining to make a market power finding. . . . Rather, broadband 
providers' ability to impose restriction on edge providers simply 
depends on end users not being fully responsive to the imposition of 
such restrictions.

    Thus, section 2 of the Sherman Act will not provide adequate 
protection, at least in cases where the BIAS provider lacks monopoly 
power over its end user customers. In Mozilla, the D.C. Circuit 
reiterated its concern about the insufficiency of the RIF Order's 
reliance on antitrust law, explaining that the RIF Order ``fail[ed] to 
explain what, if any, concrete remedies might address these antitrust 
violations.'' As such, while the Sherman Act may complement the rules 
we adopt in the Order, it would not be sufficient on its own to protect 
edge providers, consumers, and the open internet.
    476. Similarly, it is not clear that all conduct that harms edge 
providers,

[[Page 45505]]

consumers, and the open internet would necessarily violate section 5 of 
the FTC Act's prohibition on ``unfair or deceptive acts or practices'' 
even while BIAS providers are not classified as common carriers and 
thus are subject to the FTC Act. Whether an act is unfair or deceptive 
under consumer protection law each depends on its own subjective test. 
Commenters argue that the FTC is a more appropriate enforcer of open 
internet principles, emphasize that the FTC has the authority to 
enforce BIAS provider pledges and commitments not to block, throttle, 
or otherwise harm consumers. But these commenters do not address 
whether the FTC would have any enforcement authority with respect to a 
BIAS provider that does not make affirmative pledges or commitments. 
Nor is it clear how the FTC would rule should a BIAS provider engage in 
other types of conduct that do not amount to blocking or throttling, 
but that nevertheless harm edge providers and the open internet. As 
such, we disagree that consumer protection law is adequate to protect 
the open internet.
    477. We also find that there are significant advantages to adopting 
ex ante bright-line rules compared with relying on an ex post case-by-
case approach, the latter of which is necessary for the DOJ and FTC. 
First, ex ante bright-line rules can reduce regulatory uncertainty and 
provide better guidance to BIAS providers, edge providers, and end 
users. In the antitrust context, the U.S. Supreme Court has created 
certain per se rules that prohibit particular types of conduct. It has 
described this per se approach as ``reflect[ing] broad generalizations 
holding true in so many cases that inquiry into whether they apply to 
the case at hand would be needless and wasteful.'' Where, as here, 
however, no commenter claims that the blocking or throttling of a 
specific edge-provider's lawful content will increase consumer or 
social welfare, we find it reasonable and efficient to adopt a bright-
line prohibition. In contrast, ex post case-by-case enforcement like 
that under the FTC and DOJ involves greater expense, longer delays in 
prosecuting enforcement actions, and greater uncertainty as to which 
types of conduct are allowed or proscribed.
    478. We further find that the oversight and enforcement elements of 
the RIF Order's framework likely do not provide consumers a meaningful 
opportunity to obtain relief. The primary means by which the RIF Order 
suggests consumers might seek redress for harmful BIAS provider conduct 
is to submit complaints to the FTC, with the hope that the complaint 
might spark an agency investigation. The Mozilla court criticized the 
RIF Order's reliance on antitrust and consumer protection law. 
Moreover, the Supreme Court's decision in AMG Capital Management v. 
Federal Trade Commission restricted the FTC's ability to seek monetary 
relief on behalf of consumers. Finally, while the Commission also 
suggested that consumers could seek non-legal forms of relief by 
switching to an alternative BIAS provider and bringing public attention 
to the BIAS provider conduct at issue to influence that provider into 
changing its behavior, we find that there may be high costs associated 
with trying to switch providers. While some of these options may 
provide relief for some subset of consumers, overall, they are far from 
widely available. As part of arguments opposing the re-adoption of 
internet conduct rules, some commenters highlight the example of a 
small ISP in the Pacific Northwest as positive proof that consumer 
backlash can prevent violations of open internet principles. In this 
circumstance, a small BIAS provider announced that it would block 
access to social media sites that had permanently banned the former 
president. After public criticism, the BIAS provider backtracked. We do 
not doubt that transparency plays an important role in policing BIAS 
provider behavior, as this example demonstrates. However, we observe 
that this particular situation involves an important public figure and 
some of the largest social media companies in the country. It is not 
clear that a situation that did not involve some of the largest figures 
in the country would gain the same type of traction with the public, 
and a smaller edge provider would not be in the same position as those 
in this example to draw attention to the behavior. This lack of 
predictability makes reliance on transparency an uncertain course for 
consumers to obtain relief. As discussed above, the D.C. Circuit 
expressed concern that the RIF Order ``failed to provide any meaningful 
analysis of whether [antitrust and consumer protection] laws would, in 
practice, prevent blocking and throttling.'' Furthermore, the harms 
contemplated in section V.A.3 may not always be observable to the 
average consumer.
    479. Finally, we agree with Public Knowledge that ``Congress 
correctly identified that telecommunications services require sector-
specific rules from an expert regulator: the FCC.'' To the extent that 
the conduct complained of does not involve a violation of a bright-line 
rule, as with enforcement under the Sherman Act and to the extent that 
section 5 of the FTC Act might apply, it seems inefficient to place 
enforcement responsibility with generalist agencies rather than with 
the FCC, which possesses the technical and market knowledge and 
expertise concerning communications and broadband technologies. Indeed, 
the common carrier exception in section 5 of the FTC Act appears to 
presume that telecommunications carriers should instead be principally 
governed by sector-specific FCC rules. Moreover, because the FCC is 
constantly monitoring the telecommunications markets that it is charged 
with regulating, it is more likely to detect and deter conduct that 
harms the open internet. Finally, the FCC is better placed to enforce 
open internet rules and such violations where remedying harmful conduct 
is likely to require ongoing monitoring and supervision by the expert 
agency's enforcement oversight. Thus, we reaffirm our belief that the 
Commission, as the expert agency on communications, is best positioned 
to safeguard internet openness. In the RIF Order, the Commission 
removed its own authority to enforce open internet requirements, 
leaving the responsibility of addressing harmful BIAS provider conduct 
to the FTC. The current Chair of the FTC has recognized the need for 
the Commission's critical oversight. In remarks released in 2021, Chair 
Lina M. Khan noted that ``the Federal Communications Commission has the 
clearest legal authority and expertise to fully oversee internet 
service providers.'' She continued that she ``support[s] efforts to 
reassert [the FCC's] authority and once again put in place the 
nondiscrimination rules, privacy protections, and other basic 
requirements needed to create a healthier market.'' In response to the 
2023 Open Internet NPRM, several commenters agreed, arguing that the 
Commission's general expertise is needed.

B. Rules To Safeguard and Secure the Open Internet

1. Bright-Line Rules
    480. The record in this proceeding is rife with support for the 
reinstatement of strong, enforceable open internet rules to prohibit 
BIAS providers from blocking, throttling, or engaging in paid or 
affiliated prioritization arrangements. Without rules in place to 
safeguard and secure the open internet, the incentives BIAS providers 
have to act in ways that are harmful to investment and innovation 
threaten both broadband networks and edge content, as the D.C.

[[Page 45506]]

Circuit has recognized. We find that a safe, secure, and open internet 
is too important to consumers and innovators to leave unprotected. As 
in 2015, we believe that conduct-based rules targeting specific 
practices are necessary, and accordingly adopt bright-line rules to 
prohibit blocking, throttling, and paid prioritization by providers of 
both fixed and mobile BIAS. For the reasons described below, we find 
each of these practices inherently unjust and unreasonable, in 
violation of section 201(b) of the Act, and that these practices 
threaten the virtuous cycle of innovation and investment.
    481. We disagree with commenters that assert that reinstatement of 
conduct rules is unnecessary because BIAS providers have not engaged in 
widespread blocking or throttling of traffic since the elimination of 
the conduct rules in 2018. As an initial matter, there exists 
evidence--as well as numerous consumer allegations--that BIAS providers 
have not refrained from this conduct. Contrary to industry assertions 
claiming that rules are unnecessary because YourT1Wifi.com reversed its 
policy, we do not believe that consumers should have to rely on public 
outcry alone to be able to reach all content of their choosing. The 
Commission has received nearly 40,000 consumer complaints since 
adoption of the RIF Order raising speed, throttling, open internet, and 
data cap concerns. Some consumers assert, for example, that certain 
video traffic was throttled by their BIAS provider, as demonstrated by 
the fact that VPN-masked video traffic had no similar issues. We make 
no determinations regarding the allegations in these complaints in the 
Order. To the extent that some BIAS providers have acted consistently 
with open internet principles, we agree with Netflix and Mozilla that 
the combination ``of individual state laws and a pending regulatory 
proceeding disincentivized ISPs from undermining the open internet.'' 
In any event, we find that it is not acceptable for consumers to be 
beholden to the voluntary whims of their BIAS provider or be 
selectively protected depending on the State in which they live or the 
size of their provider, nor is it sufficient to promote innovation 
among edge providers. As we explain throughout this section, there is 
nothing in the record that convinces us that customers of small BIAS 
providers are entitled to less protection than customers of large BIAS 
providers. Nor do we find that imposition of these open internet rules 
on small BIAS providers will be so burdensome as to justify a six-month 
or one-year delay in implementation for these providers (except where 
we provide a temporary exemption for certain of the transparency rule 
requirements, as discussed below), particularly given that ACA Connects 
itself indicates that small BIAS providers are already complying with 
the open internet principles. We are similarly not convinced of the 
need for a FNPRM, as requested by WISPA, examining, among other things, 
whether the ``Regulatory Flexibility Act requires the Commission to 
exempt small BIAS providers from the rules'' and the ``costs to comply 
with all of the regulatory obligations the Commission has imposed on 
BIAS providers over the past two years,'' and ``propos[ing] to 
permanently exempt small providers from the bright line rules, the 
general conduct rule, and the new transparency requirements.'' The 
Commission sought comment on the effect of the proposed rules and 
policies on small entities in the 2023 Open Internet NPRM and the 
accompanying Initial Regulatory Flexibility Analysis. The Commission 
has carefully considered these impacts in adopting the requirements in 
the Order, and as such, a FNPRM examining these issues is not 
necessary. In adopting strong, enforceable open internet rules, we will 
ensure a safe and open internet for all consumers nationwide and 
promote innovation that fuels the virtuous cycle.
a. Preventing Blocking of Lawful Content, Applications, Services, and 
Non-Harmful Devices
    482. We reinstate a bright-line rule prohibiting BIAS providers 
from blocking lawful content, applications, services, or non-harmful 
devices. This ``no-blocking'' principle has long been a cornerstone of 
the Commission's policies. While first applied in the internet context 
as part of the Commission's Internet Policy Statement, the no-blocking 
concept dates back to the Commission's protection of end users' rights 
to attach lawful, non-harmful devices to communications networks. We 
continue to find, as the Commission has previously, that ``the freedom 
to send and receive lawful content and to use and provide applications 
and services without fear of blocking continues to be essential to the 
internet's openness.'' Because of BIAS providers' potential incentives 
to block edge providers' content in certain circumstances, the need to 
protect a consumer's right to access lawful content, applications, 
services, and to use non-harmful devices is as important today as it 
was when the Commission adopted the first no-blocking rule in 2010. 
Consistent with our proposal, we reinstate the no-blocking rule, which 
is widely supported in the record, providing that a person engaged in 
the provision of broadband internet access service, insofar as such 
person is so engaged, shall not block lawful content, applications, 
services, or non-harmful devices, subject to reasonable network 
management.
    483. Consistent with the 2015 no-blocking rule, the phrase 
``content, applications, and services'' refers to all traffic 
transmitted to or from end users of a broadband internet access 
service, including traffic that may not fit clearly into any of these 
categories. The no-blocking rule applies to transmissions of lawful 
content only and does not prevent or restrict a BIAS provider from 
refusing to transmit unlawful material, such as child pornography or 
copyright-infringing materials. The no-blocking rule also entitles end 
users to connect, access, and use any lawful device of their choice, 
provided that the device does not harm the network. The no-blocking 
rule prohibits network practices that block a specific application or 
service, or any particular class of applications or services, unless it 
is found to be reasonable network management. Finally, as with the 2010 
and 2015 no-blocking rules, this document's no-blocking rule prohibits 
BIAS providers from charging edge providers a fee to avoid having edge 
providers' content, services, or applications blocked from reaching 
BIAS providers' end-user customers.
    484. We agree with the Free State Foundation that, ``[b]y offering 
subscribers access to whatever lawful internet content they want, 
broadband ISPs enhance the perceived value of their services and 
thereby increase demand, subscribership, and opportunities for 
financial returns and profits.'' Further, we expect that provider costs 
for compliance with the no-blocking rule will be minimal, given that 
many BIAS providers have continued to comply with the no-blocking rule 
even after its repeal in 2018, and that providers themselves assert 
that they have every incentive not to block traffic.
b. Preventing Throttling of Lawful Content, Applications, Services, and 
Non-Harmful Devices
    485. Consistent with our proposal, we reinstate a separate bright-
line rule prohibiting BIAS providers from impairing or degrading lawful 
internet traffic on the basis of content, application, service, or use 
of non-harmful device--conduct that was

[[Page 45507]]

prohibited under the commentary to the no-blocking rule adopted in the 
2010 Open Internet Order, and that the Commission explicitly prohibited 
in 2015. We use the term ``throttling'' to refer to conduct that is not 
outright blocking, but that inhibits the delivery of particular 
content, applications, or services, or particular classes of content, 
applications, or services.
    486. We adopt the following no-throttling rule applicable to BIAS 
providers, which tracks the language of the Commission's 2015 Open 
Internet Order, providing that a person engaged in the provision of 
broadband internet access service, insofar as such person is so 
engaged, shall not impair or degrade lawful internet traffic on the 
basis of internet content, application, or service, or use of a non-
harmful device, subject to reasonable network management.
    487. With the no-throttling rule, we ban conduct that is not 
outright blocking, but inhibits the delivery of particular content, 
applications, or services, or particular classes of content, 
applications, or services. Likewise, we prohibit conduct that impairs 
or degrades lawful traffic to a non-harmful device or class of devices. 
We interpret this prohibition to include, for example, any conduct by a 
BIAS provider that impairs, degrades, slows down, or renders 
effectively unusable particular content, services, applications, or 
devices, that is not reasonable network management. Our interpretation 
of ``throttling'' encompasses a wide variety of conduct that could 
impair or degrade an end user's ability to access content of their 
choosing. We clarify that a BIAS provider's decision to speed up ``on 
the basis of internet content, applications, or services'' would 
``impair or degrade'' other content, applications, or services which 
are not given the same treatment. For purposes of this rule, ``content, 
applications, and services'' has the same meaning given to this phrase 
in the no-blocking rule. Like the no-blocking rule, BIAS providers may 
not impose a fee on edge providers to avoid having the edge providers' 
content, service, or application throttled. Further, transfers of 
unlawful content or unlawful transfers of content are not protected by 
the no-throttling rule. As in past Orders, we continue to recognize 
that in order to optimize end-user experience, BIAS providers must be 
permitted to engage in reasonable network management practices. We 
note, however, that the record reflects that ``[t]here are many factors 
that limit video impact, including the fact that video providers use 
adaptive bitrates to select video resolution (bitrates) according to 
available bandwidth, they use congestion-control algorithms while 
transmitting, and network providers expanded network capacity during 
the COVID lockdown era.''
    488. Because our no-throttling rule addresses instances in which a 
BIAS provider targets particular content, applications, services, or 
non-harmful devices, it does not address the practice of slowing down 
or speeding up an end user's connection to the internet based on a 
choice clearly made by the end user. For example, a BIAS provider may 
offer a data plan in which a subscriber receives a set amount of data 
at one speed tier and any remaining data at a lower tier. We note that 
user-selected data plans with reduced speeds must comply with our 
transparency rule, such that the limitations of the plan are clearly 
and accurately communicated to the subscriber. If there were internet 
openness concerns with the particulars of a data plan, the Commission 
could undertake a review under the general conduct standard, discussed 
below. In contrast, if a BIAS provider degraded the delivery of a 
particular application or class of application, it would violate the 
bright-line no-throttling rule. Further, consistent with the 2015 Open 
Internet Order, the no-throttling rule also addresses conduct that 
impairs or degrades content, applications, or services that might 
compete with a BIAS provider's affiliated content. For example, if a 
BIAS provider and an unaffiliated entity both offered over-the-top 
applications, the no-throttling rule would prohibit the BIAS provider 
from constraining bandwidth for the competing over-the-top offering to 
prevent it from reaching the BIAS provider's end user in the same 
manner as the affiliated application.
    489. We agree with the Information Technology Industry Council that 
the no-throttling rule ``ensures the internet remains a vibrant 
platform for any individual, startup, or company to provide new, 
innovative, and competitive offerings without needing to worry that 
access to their offerings may be blocked or degraded for 
anticompetitive purposes.'' Because we find that BIAS providers have 
the incentive and ability to throttle or otherwise interfere with 
traffic of competing content providers, we conclude that a bright-line 
rule prohibiting throttling, subject to reasonable network management, 
is necessary. Further, we believe that the bright-line rule we adopt in 
the Order to protect consumers' right to access lawful internet traffic 
of their choice without impairment or degradation will not impose 
significant compliance burdens or costs, particularly given that many 
BIAS providers continue to advertise on their website that they do not 
throttle traffic except in limited circumstances. Finally, we disagree 
with commenters that argue that concerns about throttling lack 
persuasiveness, citing the datedness of examples provided in the 
record. Professor David Choffnes explains that data show that ``nearly 
every cellular provider that offers mobile BIAS in the US throttles at 
least one video streaming service,'' explaining that there is ``direct 
empirical evidence that ISPs in the US . . . [use] special networking 
equipment called middleboxes that inspect the contents of our network 
traffic to make guesses as to what application is being used, and then 
potentially limit the bandwidth available to that application in 
response.'' While we do not rely on these findings as justification for 
the no-throttling rule, they remain instructive regarding BIAS 
providers' technical ability to throttle traffic.
c. No Paid or Affiliated Prioritization
    490. We reinstate the prohibition on paid or affiliated 
prioritization practices, subject to a narrow waiver process. In the 
2023 Open Internet NPRM, the Commission proposed to reestablish a ban 
on arrangements in which a BIAS provider accepts consideration 
(monetary or otherwise) from a third party to manage its network in a 
manner that benefits particular content, applications, services, or 
devices, or manages its network in a manner that favors the content, 
applications, services, or devices of an affiliated entity. The Act 
defines ``affiliate'' as ``a person that (directly or indirectly) owns 
or controls, is owned or controlled by, or is under common ownership or 
control with, another person. For purposes of this paragraph, the term 
`own' means to own an equity interest (or the equivalent thereof) of 
more than 10 percent.'' After consideration of the record, we conclude 
that paid prioritization network practices harm consumers, competition, 
and innovation, as well as create disincentives to promote broadband 
deployment and, as such, we reinstate a bright-line rule prohibiting 
such practices.
    491. We adopt the following paid prioritization rule applicable to 
BIAS providers, which tracks the language of the Commission's 2015 Open 
Internet Order, providing that a person engaged in the provision of 
broadband internet access service, insofar as such person is engaged, 
shall not engage in paid prioritization. ``Paid prioritization'' refers 
to the management of a broadband provider's network to directly or

[[Page 45508]]

indirectly favor some traffic over other traffic, including through use 
of techniques such as traffic shaping, prioritization, resource 
reservation, or other forms of preferential traffic management, either 
(a) in exchange for consideration (monetary or otherwise) from a third 
party, or (b) to benefit an affiliated entity.
    492. We find that the same concerns present in 2015 remain true in 
the Order, that preferential treatment arrangements have the potential 
to create a chilling effect, disrupting the internet's virtuous cycle 
of innovation, consumer demand, and investment. While small BIAS 
providers argue that they have neither the incentive nor market power 
to limit access to edge provider applications, services, and devices, 
and ``reciprocally to control or limit edge provider access to their 
small customer bases,'' for the reasons we describe below we find it 
appropriate to establish a bright-line rule applicable to all BIAS 
providers in order to provide certainty to BIAS and edge providers 
alike. In the 2023 Open Internet NPRM, we tentatively concluded that, 
absent open internet rules, BIAS providers might engage in practices 
that ``could unravel the virtuous cycle'' and that there are ``far more 
edge services that are small . . . which the RIF Order does not 
acknowledge or evaluate.'' We sought comment on these tentative 
conclusions and on whether small edge providers had any leverage in 
negotiations with BIAS providers and on whether BIAS providers 
``seeking paid prioritization arrangements . . . would 
disproportionately harm small edge providers. As discussed above, we 
find, in general, that BIAS providers have the incentive and ability 
engage in conduct that harms edge providers, particularly small edge 
providers. Based on the record and related research on competition in 
vertically related markets, we find more specifically that forms of 
paid and affiliate prioritization can be used by BIAS providers in ways 
that may harm edge providers and edge innovation. In particular, BIAS 
providers may use paid or affiliated prioritization to raise the costs 
of edge providers that compete with their vertically integrated edge 
affiliates or with edge providers with whom they have a contractual 
arrangement. In addition, if BIAS providers can profitably charge edge 
providers for prioritized access, they may have an incentive to 
strategically degrade, or decline to maintain or increase, the quality 
of service to non-prioritized uses and users in order to raise the 
profits from selling priority access. Thus, BIAS providers might 
withhold or decline to expand capacity in order to ``squeeze'' and 
degrade nonprioritized traffic, thus increasing network congestion. 
These types of conduct create competitive disadvantages for 
unaffiliated edge providers. Other things being equal, they increase 
the costs of innovation for edge providers and reduce the number of 
innovation experiments. In turn, this will likely decrease the rate of 
edge and network innovation.
    493. The Commission has previously found it well established that 
BIAS providers have both the incentive and the ability to engage in 
paid prioritization. In its Verizon opinion, the D.C. Circuit noted the 
powerful incentives BIAS providers have to accept fees from edge 
providers in return for excluding their competitors or for granting 
prioritized access to end users. The record reflects commenter concerns 
regarding preferential treatment arrangements, with many advocating for 
a flat ban on paid prioritization. Commenters argue, for example, that 
permitting paid prioritization will result in a two-tiered internet, 
with a ``fast'' lane for those willing and able to pay, and a ``slow'' 
lane for everyone else. Other commenters argue that paid prioritization 
will distort the market; harm competition, consumers, edge providers 
(particularly small edge providers), and free expression; and 
discourage innovation. The American Library Association also expressed 
concern that permitting paid prioritization would also disadvantage 
``non-profit or public interest entities such as libraries and other 
public institutions that often operate under very tight budgets.''
    494. Our concerns regarding paid prioritization are compounded by 
the fact that documenting the harms could prove challenging, as it is 
impossible to identify small businesses and new applications that are 
stifled before they become commercially viable. We are also concerned 
that the widespread use of paid prioritization practices would cause 
damage to internet openness that would be difficult to reverse. As we 
noted in the 2023 Open Internet NPRM, we find it encouraging that some 
BIAS providers continue to advertise that they do not engage in paid or 
affiliated prioritization practices. As with our no-blocking and no-
throttling bright-line rules, however, we continue to believe that the 
potential harm to the open internet is too significant to rely on 
promises from BIAS providers because ``the future openness of the 
internet should not turn on the decision[s] of a particular company.''
    495. The record reflects some positive use cases of paid 
prioritization, and conversely, some costs associated with a ban on 
such practices. For example, ADTRAN asserts that ``requiring free 
prioritization ignores the costs that are incurred in enabling that 
service and encourages over-consumption,'' and also highlights uses of 
paid prioritization in other settings. The International Center for Law 
and Economics emphasizes the importance of prioritization when 
congestion is detected on the network. While we do not discount the 
potential benefits of paid prioritization, we remain convinced that the 
potential harms to consumers and the open internet outweigh any 
speculative benefits.
    496. As in 2015, we find that there are advantages to adopting a 
bright-line rule prohibiting paid prioritization. For one, we believe 
it will protect consumers against a harmful practice that may be 
difficult to understand, even if disclosed. In addition, this approach 
relieves small edge providers, innovators, and consumers of the burden 
of detecting and challenging instances of harmful paid prioritization. 
Prohibiting paid prioritization outright will also likely help foster 
broadband network investment by setting clear boundaries of acceptable 
and unacceptable behavior. Thus, we find it most appropriate to adopt a 
bright-line rule banning paid prioritization arrangements, while 
entertaining waiver requests under limited circumstances. Consistent 
with the 2015 Open Internet Order and the record, we clarify that the 
ban on paid prioritization does not restrict the ability of a BIAS 
provider to enter into an agreement with a CDN to store content locally 
within the BIAS provider's network.
    497. Under the Commission's longstanding waiver rule, the 
Commission may waive any rule in whole or in part, for good cause 
shown. A general waiver of the Commission's rules is only appropriate 
if special circumstances warrant a deviation from the general rule and 
such a deviation will serve the public interest. In 2015, the 
Commission found that it was appropriate to adopt specific rules 
concerning the factors that it will use to examine a waiver request of 
the paid prioritization ban, and we proposed to adopt a waiver rule for 
the paid prioritization ban consistent with the 2015 Open Internet 
Order. We conclude that it remains appropriate to accompany a rule 
prohibiting paid prioritization arrangements with specific guidance on 
how the Commission would evaluate subsequent waiver requests.

[[Page 45509]]

    498. Accordingly, we adopt a rule concerning waiver of the paid 
prioritization ban that establishes a balancing test, consistent with 
our proposal, providing that the Commission may waive the ban on paid 
prioritization only if the petitioner demonstrates that the practice 
would provide some significant public interest benefit and would not 
harm the open nature of the internet.
    499. In accordance with the framework established in 2015, 
applicants seeking a waiver of the paid prioritization ban will be 
required to make two related showings. First, the applicant must 
demonstrate that the practice will have some significant public 
interest benefit. The applicant can make such a showing by providing 
evidence that the practice furthers competition, innovation, consumer 
demand, or investment. Second, the applicant must demonstrate that the 
practice does not harm the open nature of the internet, including, but 
not limited to, providing evidence that the practice: (i) does not 
materially degrade or threaten to materially degrade the BIAS of the 
general public; (ii) does not hinder consumer choice; (iii) does not 
impair competition, innovation, consumer demands, or investment; and 
(iv) does not impede any forms of expression, types of service, or 
points of view. An applicant seeking waiver relief under this rule 
faces a high bar. We anticipate approving such exemptions only in 
exceptional cases.
    500. We disagree with commenters that assert that delays associated 
with the waiver process will deter investment and innovation in 
prioritization services. As an initial matter, we find that 
prioritization services themselves generally deter investment and 
innovation. In any event, the Commission has shown itself capable of 
handling a variety of different types of waiver requests on a timely 
basis, so assertions about delay are speculative at this juncture. We 
also disagree with the parties that suggest the waiver process we re-
adopt in the Order provides insufficient guidance to potential waiver 
applicants. We are not merely relying on the Commission's general 
longstanding waiver standard and instead provide specific factors that 
the Commission will evaluate in considering such waiver requests, 
which, for instance, provide guidance on how a party might show a 
``public benefit'' or show how the conduct ``does not harm the open 
nature of the internet.''
2. General Conduct Rule
    501. In addition to the three bright-line rules, we also reinstate 
a no-unreasonable interference/disadvantage standard, under which the 
Commission can prohibit practices that unreasonably interfere with the 
ability of consumers or edge providers to select, access, and use BIAS 
to reach one another, thus causing harm to the open internet. This no-
unreasonable interference/disadvantage general conduct standard will 
operate on a case-by-case basis, applying a non-exhaustive list of 
factors, and is designed to evaluate other current or future BIAS 
provider policies or practices--not covered by the bright-line rules--
and prohibit those that harm the open internet. Our prohibitions on 
blocking, throttling, and paid prioritization are critical to 
protecting and promoting the open internet, and we expect that these 
bans will prevent many of the harms identified above. We conclude, 
however, as the Commission found in 2015, that the Commission needs a 
mechanism to enable it to respond to attempts by BIAS providers to 
wield their gatekeeper power in ways that might otherwise compromise 
the open internet. In other words, the general conduct rule is a 
necessary backstop to ensure that BIAS providers do not find a 
technical or economic means to evade the bright-line prohibitions on 
blocking, throttling, and paid prioritization.
    502. In the 2023 Open Internet NPRM, we proposed adopting a general 
conduct rule that tracks the language and approach that the Commission 
adopted in the 2015 Open Internet Order. We sought comment on our 
analysis that a general conduct rule is still needed to operate as a 
catch-all backstop to the three bright-line prohibitions we proposed, 
and on the need and characteristics of any potential modifications we 
should make to the version of the rule that the Commission had 
previously adopted, if commenters deemed such a rule necessary. We also 
sought comment on the accuracy of the RIF Order's critiques that the 
general conduct rule was ``vague and ha[d] created regulatory 
uncertainty in the marketplace hindering investment and innovation,'' 
and steps the Commission might take to increase BIAS providers' 
understanding of potentially prohibited practices under a re-adopted 
rule.
    503. The Commission has long identified the need to protect 
consumers and edge providers from discriminatory conduct by BIAS 
providers. In 2010, the Commission enshrined this goal in a no-
unreasonable discrimination rule that enabled the Commission to 
evaluate, on a case-by-case basis, the conduct of fixed BIAS providers 
based on a number of factors. At the time, the 2010 Open Internet Order 
exempted mobile BIAS providers from the anti-discrimination rule. When 
challenged, the D.C. Circuit accepted the Commission's underlying 
policy rationale for the regulations in the 2010 Open Internet Order, 
including its nondiscrimination rule; however, the court vacated the 
Commission's anti-discrimination and no-blocking rules for imposing de 
facto common carrier status on BIAS providers in violation of the 
Commission's then-classification of BIAS as an information service. In 
2015, when the Commission reclassified BIAS as a telecommunications 
service, it adopted a revised general conduct rule that was designed to 
prevent BIAS providers from unreasonably interfering with, or 
disadvantaging, consumers' ability to reach the internet content, 
services, and applications of their choosing or edge providers' ability 
to access consumers using the internet. The D.C. Circuit subsequently 
upheld the 2015 Open Internet Order in full, including the Commission's 
new no-unreasonable interference/disadvantage standard (i.e., the 2015 
general conduct rule).
    504. We agree with the goals of the Commission's previous 
nondiscrimination and general conduct rules, and we conclude that such 
a rule is still needed as a backstop to the bright-line prohibitions on 
blocking, throttling, and paid prioritization to protect the open 
nature of the internet. Accordingly, we adopt the following general 
conduct rule to address unreasonable discrimination, providing that any 
person engaged in the provision of broadband internet access service, 
insofar as such person is so engaged, shall not unreasonably interfere 
with or unreasonably disadvantage (a) end users' ability to select, 
access, and use broadband internet access service or the lawful 
internet content, applications, services, or devices of their choice, 
or (b) edge providers' ability to make lawful content, applications, 
services, or devices available to end users. Reasonable network 
management shall not be considered a violation of this rule.
    For the purposes of this rule, we define ``edge provider'' as ``any 
individual or entity that provides any content, application, or service 
over the internet, and any individual or entity that provides a device 
used for accessing any content, application, or service over the 
internet.'' And we define ``end user'' as ``any individual or entity 
that uses a broadband internet access service.'' Consistent with the 
Commission's guidance in 2015, we note that the general conduct 
standard we adopt in the Order ``represents our

[[Page 45510]]

interpretation of sections 201 and 202 in the broadband internet access 
context and, independently, our interpretation--upheld by the Verizon 
court--that rules to protect internet openness promote broadband 
deployment via the virtuous cycle under section 706 of the 1996 Act.''
    505. We find that this rule is necessary to protect the ability of 
consumers and edge providers to use the open internet for several 
reasons. First, we agree with the American Civil Liberties Union and 
other commenters that the rule will allow the Commission to respond to 
harmful conduct not easily categorized as blocking, throttling, or paid 
prioritization. Second, because of the ``constantly evolving nature of 
technologies underlying the internet ecosystem,'' it is difficult to 
predict all of the practices that might harm the openness of the 
internet, and we agree with those commenters, such as the Ad Hoc 
Telecom Users Committee and Cloudflare, who argue that the Commission 
needs flexibility to address consumer and competitive harms as 
technology evolves. And third, the general conduct rule will provide 
the Commission a means of addressing BIAS providers that develop 
policies and practices that evade the bright-line prohibitions. As 
Professor Jon Peha notes, even with the adoption of the bright-line 
rules, BIAS providers would still have the incentive to act as 
gatekeepers.
    506. Consistent with our proposal, we adopt a case-by-case approach 
that will consider the totality of the circumstances when analyzing 
whether conduct satisfies the general conduct standard to protect the 
open internet. We endeavor to maintain an internet ecosystem that 
balances the Commission's ability to protect consumers and edge 
providers from harmful conduct, while still allowing BIAS providers the 
flexibility and encouragement to develop new technologies and business 
practices. We conclude, based on the record before us, that evaluating 
potential conduct on a case-by-case basis will allow the Commission to 
respond to emerging practices that may harm the open nature of the 
internet while enabling BIAS providers to offer innovative services 
that keep pace with evolving technology and business practices. We make 
clear that the general conduct rule is not an attempt to institute any 
form of rate regulation; nor is it an attempt by the Commission to 
expand our bright-line conduct rules in an indeterminate manner. The 
general conduct rule is designed to operate as a backstop to the 
Commission's prohibitions on blocking, throttling, and paid 
prioritization to address, on a case-by-case basis, practices that may 
harm the open nature of the internet.
    507. To provide guidance to BIAS providers regarding the 
application of the general conduct rule, we adopt a non-exhaustive list 
of factors that we will consider to aid in our analysis. These factors 
include: (i) whether a practice allows end-user control and enables 
consumer choice; (ii) whether a practice has anticompetitive effects in 
the market for applications, services, content, or devices; (iii) 
whether a practice affects consumers' ability to select, access, or use 
lawful broadband services, applications, or content; (iv) the effect a 
practice has on innovation, investment, or broadband deployment; (v) 
whether a practice threatens free expression; (vi) whether a practice 
is application agnostic; and (vii) whether a practice conforms to best 
practices and technical standards adopted by open, broadly 
representative, and independent internet engineering, governance 
initiatives, or standards-setting organizations. Consistent with the 
2015 Open Internet Order, we note that in addition to this list, there 
may be other considerations relevant to determining whether a 
particular practice violates the no-unreasonable interference/
disadvantage standard. We decline to adopt the New York State School 
Boards Association's proposal that we adopt an additional factor that 
``weighs whether a practice will inhibit the ability of educational 
institutions to provide educational materials to students.'' We believe 
that the educational access concerns raised are adequately covered by 
the existing ``free expression'' and ``consumer ability to access'' 
factors or could be considered on a case-by-case basis as needed.
    508. When the D.C. Circuit upheld the general conduct rule as 
adopted in the 2015 Open Internet Order, it recognized the need to 
build flexibility into the rule. The court noted that, if regulations 
were too specific, it would open up large loopholes, a concern that the 
court observed was especially applicable because of the speed at which 
broadband technology evolves. We conclude that evaluating potential 
conduct against these factors will allow BIAS providers to ``reasonably 
discern whether certain practices would violate the rule,'' and that 
``having clear standards for evaluation of questionable behavior in the 
form of the general conduct factors . . . will permit more rapid 
resolution of potentially harmful practices.'' To address concerns 
raised in the record concerning the meaning of the factors, how the 
factors will be weighed against each other, and the list's non-
exhaustive nature, we describe in detail each of the factors below and 
we establish an advisory opinion process for BIAS providers to seek 
Commission advice on potential conduct, if they so choose. We 
anticipate that the factors we outline for consideration of practices 
will provide important guideposts for consumers, edge providers, and 
BIAS providers on whether practices are likely to unreasonably 
disadvantage or interfere with end users ability to reach the internet 
content, services, and applications of their choosing or of edge 
providers to access consumers using the internet.
    509. End-User Control. We reaffirm our conclusion from the 2015 
Open Internet Order and find that a practice that allows end-user 
control and that is consistent with promoting consumer choice is less 
likely to unreasonably interfere with or cause an unreasonable 
disadvantage affecting the end user's ability to use the internet as he 
or she sees fit. It is critical that consumers' decisions, rather than 
those of BIAS providers, remain the driving force behind the 
development of the internet. We observe that there are competing 
narratives surrounding certain mobile plans that provide different 
video resolution levels. We find that the current record lacks 
sufficient specificity about specific plans to make a definitive 
determination. Practices that favor end-user control and empower 
meaningful consumer choice are more likely to satisfy the general 
conduct standard than those that do not. As the Commission recognized 
in 2010 and 2015, we remain aware of the reality that user control and 
network control are not mutually exclusive. Rather, practices will fall 
somewhere on a spectrum between more end-user control and more BIAS 
provider control. There also may be practices that involve complete 
BIAS provider control that nonetheless satisfy the general conduct 
rule. Some commenters point to the fact that the Commission recognizes 
this range between end-user control and BIAS provider control as 
evidence of this factor's vagueness problem. However, we find that our 
approach is consistent with the Commission's regulatory approach in 
other contexts that require the Commission, and providers, to balance 
competing interests, and we believe that this approach provides 
appropriate guidance to BIAS providers while still enabling them to 
experiment and innovate with practices that function across this

[[Page 45511]]

spectrum. We emphasize that in all practices, BIAS providers should be 
fully transparent to the end user and effectively reflect end users' 
choices. The Electronic Frontier Foundation asserts that ``in practice 
transparency is a poor substitute for meaningful choice.'' As part of 
our case-by-case analysis for this factor, the Commission will examine 
whether transparency regarding the practice at issue actually enables 
meaningful consumer choice.
    510. Competitive Effects. As discussed above, we find that BIAS 
providers have incentives to interfere with and disadvantage the 
operation of third-party internet-based services that compete with the 
providers' own services or with those of an edge provider with which 
the BIAS provider has a contractual relationship. A practice that has 
anticompetitive effects in the market for applications, services, 
content, or devices would likely unreasonably interfere with, or 
unreasonably disadvantage, edge providers' ability to reach consumers 
in ways that would have a dampening effect on innovation, interrupting 
the virtuous cycle. We find that practices like this, i.e., 
anticompetitive practices, are likely to harm consumers' and edge 
providers' ability to use BIAS to reach one another. For example, fees 
that discourage consumer choice among BIAS providers could fall within 
the rule's scope. In contrast, more competition leads to more options 
for consumers in services, applications, content, and devices. 
Therefore, we find that practices that would enhance competition would 
weigh in favor of promoting consumers' and edge providers' ability to 
use BIAS to reach one another. We disagree with Free State Foundation's 
contention that considering the competitive effects of a practice is 
unhelpful because it is not tied to particular economic theory. 
Commission staff, and in particular the Commission's Office of 
Economics and Analytics, is well versed in examining the competitive 
effects of our rules and of industry practices, using generally 
accepted economic theory and analytical techniques. And this is 
particularly true where the Commission has examined potentially 
anticompetitive conduct by vertically integrated firms. For example, 
since the introduction of competition into the interstate long-distance 
telephone market, the Commission has repeatedly investigated claimed 
anticompetitive concerns raised by vertically integrated firms. 
Furthermore, as part of the Commission's review of the competitive 
effects of a given practice, we will also review the relevant entities' 
corporate structure, to consider the extent of an entity's vertical 
integration as well as its relationships with affiliated entities.
    511. Consumer Protection. As in 2015, we intend the general conduct 
rule to act as a strong consumer protection standard. It prohibits BIAS 
providers from employing any deceptive or unfair practice that will 
unreasonably interfere with or unreasonably disadvantage end-user 
consumers' ability to select, access, or use broadband services, 
applications, or content, so long as the services are lawful, subject 
to the exception for reasonable network management. For example, unfair 
or deceptive billing practices, as well as practices that fail to 
protect the confidentiality of end users' proprietary information, will 
be unlawful if they unreasonably interfere with or unreasonably 
disadvantage end-user consumers' ability to select, access, or use 
broadband services, applications, or content, so long as the services 
are lawful, subject to the exception for reasonable network management. 
As the Commission explained in 2015, while each practice will be 
evaluated on a case-by-case basis, this rule is intended to include 
protection against fraudulent practices such as ``cramming'' and 
``slamming'' that have long been viewed as unfair and disadvantageous 
to consumers.
    512. Effect on Innovation, Investment, or Broadband Deployment. We 
continue to find that internet openness drives a ``virtuous cycle'' in 
which innovations at the edges of the network enhance consumer demand, 
leading to expanded investments in broadband infrastructure that, in 
turn, spark new innovations at the edge. As such, a practice that will 
act to stifle innovation, investment, or broadband deployment would 
likely unreasonably interfere with or unreasonably disadvantage end 
users' or edge providers' use of the internet.
    513. Free Expression. Consistent with the Commission's findings in 
the 2015 Open Internet Order, we believe that practices that threaten 
the use of the internet as a platform for free expression would also 
likely unreasonably interfere with or unreasonably disadvantage 
consumers' and edge providers' ability to use broadband service to 
communicate with each other, thereby causing harm to that ability. Such 
practices, in turn, would dampen consumer demand for broadband 
services, disrupting the virtuous cycle, and harming end user and edge 
provider use of the internet under the general conduct rule we adopt in 
the Order. As the Commission found in 2015, we find that the general 
conduct standard we adopt in the Order does not unconstitutionally 
burden any of the First Amendment rights held by BIAS providers because 
BIAS providers are conduits, not speakers, with respect to BIAS.
    514. Application Agnosticism. We further find that application-
agnostic (sometimes referred to as use-agnostic) practices likely will 
not cause an unreasonable interference with or an unreasonable 
disadvantage to end users' or edge providers' ability to use BIAS to 
communicate with each other. Because application-agnostic practices do 
not interfere with end users' choices about which content, 
applications, services, or devices to use, neither do they distort 
competition and unreasonably disadvantage certain edge providers, they 
likely would not cause harm by unreasonably interfering with or 
unreasonably disadvantaging end users or edge providers' ability to 
communicate using BIAS. A network practice is application-agnostic if 
it does not differentiate in treatment of traffic, or if it 
differentiates in treatment of traffic without reference to the 
content, application, or device. We will consider a practice to be 
application-specific if it is not application-agnostic. Application-
specific network practices include, for example, those applied to 
traffic that has a particular source or destination, that is generated 
by a particular application or by an application that belongs to a 
particular class of applications, that uses a particular application- 
or transport-layer protocol, or that has particular characteristics 
(e.g., the size, sequencing, and/or timing of packets). There may still 
be circumstances where application-agnostic practices raise competitive 
concerns, and as such may violate our standard to protect the open 
internet. As with all practices, the Commission will evaluate these 
situations on a case-by-case basis.
    515. Standard Practices. Lastly, in evaluating whether a practice 
violates our general conduct rule, we will consider whether a practice 
conforms to best practices and technical standards adopted by open, 
broadly representative, and independent internet engineering, 
governance initiatives, or standards-setting organizations. These 
technical advisory groups play an important role in the internet 
ecosystem, and at times are convened by the Commission. We make clear, 
however, that we are not delegating authority to interpret or implement 
our rules to outside bodies.
    516. Rejection of Alternatives. We decline to adopt the alternative 
approaches to the general conduct rule suggested in the record, 
including:

[[Page 45512]]

reliance on the ``just and reasonable'' language of sections 201 and 
202; prohibiting unreasonable discrimination; assessing only whether 
the practice at issue promotes or hinders free expression, and whether 
the practice is ``application agnostic''; or adopting a ``commercial 
reasonableness'' standard for overseeing BIAS provider conduct under 
section 706 of the 1996 Act and our ancillary authority. As we explain 
above, we find it important for the Commission to be able to weigh all 
of the factors we describe in order to provide the maximum flexibility 
to providers in managing their networks and developing innovative 
services, plans, and packages for customers, particularly given the 
rapidly developing and evolving technological landscape in both the 
network and at the edge, and some of the proposed alternatives would 
not advance that interest as well as the rule we adopt. We agree with 
commenters that evaluating conduct using the multi-factor analysis 
under the general conduct rule will likely result in faster resolution 
for BIAS providers, and is easier for consumers and edge providers to 
use when evaluating BIAS provider conduct. We also find that, as a 
general matter, practices evaluated under the alternative standards 
outlined in the record would likely result in the same outcome if 
evaluated under the general conduct standard we adopt in the Order, 
given the substantial overlap in the factors. For example, Professor 
Jon Peha explains that under a bright-line prohibition against 
unreasonable discrimination, it would be permissible if a subscriber 
chose for their BIAS provider to discriminate in order to ensure that a 
telemedicine application receives superior quality of service. As part 
of its consideration of the practice under the general conduct standard 
we adopt, the Commission would weigh the fact that the practice allows 
end-user control and is consistent with promoting consumer choice. 
However, we believe the factors we outline for consideration of 
practices will provide more clarity to consumers, edge providers, and 
BIAS providers, as well as more flexibility for BIAS providers to 
innovate. We consequently find that the additional guidance provided by 
our general conduct rule has certain advantages for case-by-case 
adjudications over proceeding purely under the text of sections 201 and 
202 alone. Finally, as the Commission concluded in 2015, we are 
unpersuaded that adopting a rule prohibiting commercially unreasonable 
practices is the most appropriate approach for protecting and promoting 
an open internet. Internet openness involves many relationships that 
are not business-to-business and serves many purposes that are 
noncommercial. Further, smaller edge providers also may not ``have the 
resources to fight against commercially unreasonable practices, which 
could result in an unfair playing field before the Commission,'' 
potentially stifling innovation and harming competition.
    517. We conclude that the language we adopt in the Order offers 
sufficient clarity to BIAS providers, consumers, and edge providers on 
what conduct is prohibited, while still allowing and encouraging 
innovation and technological development. We disagree with those 
commenters who argue that the proposed general conduct rule is too 
vague and unclear, and that the rule's alleged vagueness would cause 
regulatory uncertainty that will stifle investment and harm innovation. 
Because of the insight into our approach provided by the rule itself 
and our guidance above, we conclude that stakeholders have more 
clarity--not less--than they would have had if we relied on sections 
201 and 202 of the Act alone. We nevertheless retain authority to 
address practices under sections 201 and 202 of the Act except to the 
extent that we forbear from doing so.
    518. Second, our advisory opinion process is available to allow 
BIAS providers to seek a determination of the legality of a practice, 
without having to actually engage in that practice and risk being held 
in violation in order to obtain a decision. As explained below, the 
Enforcement Bureau will not bring an enforcement action against a 
requesting party with respect to any action taken in good faith 
reliance upon an advisory opinion if all of the relevant facts were 
fully, completely, and accurately presented to the Bureau, and where 
such action was promptly discontinued upon notification of recission or 
revocation of the Commission's or the Bureau's approval.
    519. Third, although we conclude that our rule, coupled with the 
guidance above, gives providers warning of a range of prohibited 
conduct, our priority with this rule is ensuring that harmful practices 
can be stopped when they are identified. Thus, although we certainly 
will consider the imposition of penalties when specific interpretations 
or applications of our rule address particular conduct, we otherwise 
will focus solely on remedying the provider's behavior going forward. 
This is consistent with the approach the Commission has taken in the 
past in cases of violations of internet policy.
    520. Finally, as the D.C. Circuit found in 2016 when it upheld the 
2015 Open Internet Order in full, the Commission's general conduct rule 
is not impermissibly vague, and provides sufficient notice to the 
affected entities of what conduct would be prohibited moving forward. 
We adopt the same rule and framework in the Order that the D.C. Circuit 
upheld in 2016, and, as discussed further below, we conclude that the 
general conduct rule, and the multi-factor framework we offer to 
provide guidance on its application, provides BIAS providers sufficient 
notice regarding what conduct is prohibited under the rule.
    521. Application to Zero Rating. In the 2023 Open Internet NPRM, we 
sought comment on whether there were additional steps we should take to 
ensure that BIAS providers understand the types of conduct and 
practices that might be prohibited under the proposed general conduct 
standard, asking, for example, whether ``there are any zero rating or 
sponsored data practices that raise particular concerns under the 
proposed general conduct standard.'' Based on the record, and 
consistent with the 2015 Open Internet Order and our proposal, we find 
it appropriate to assess zero-rating programs under the general conduct 
standard to determine whether such practices cause harm to the open 
nature of the internet. We address the implications of our decision on 
zero rating on California's net neutrality law in the preemption 
discussion. We acknowledge that sponsored data programs--where a BIAS 
provider zero rates an edge product for economic benefit, either by 
receiving consideration from a third party to have the edge product 
zero rated or where a BIAS provider favors an affiliate's edge 
products--raise concerns under the general conduct standard. 
Nonetheless, we will continue to evaluate such programs based on a 
totality of the circumstances.
    522. Zero rating is the practice of a BIAS provider exempting edge 
services, devices, applications, and/or content (edge products) from an 
end user's usage allowance or data cap. Zero rating enables the BIAS 
provider to make some edge products cheaper to access, which can put 
those edge products at an advantage over others. In the 2015 Open 
Internet Order, the Commission recognized that zero rating had the 
potential to distort the market and incentivize restrictive caps, but 
noted that ``new service offerings, depending on how they are 
structured, could benefit consumers and competition.''

[[Page 45513]]

Based on this, the Commission stated that it would ``look at and assess 
such practices under the no-unreasonable interference/disadvantage 
standard, based on the facts of each individual case, and take action 
as necessary.''
    523. The record indicates that zero-rating programs can be 
structured in a manner that benefits consumers, competition, and 
traffic management. Allowing a mechanism that lowers the cost of 
accessing certain edge products could be beneficial to consumers, and 
at least one commenter contends that zero-rating programs can help 
bring new entrants online.
    524. However, the record also reveals concerns about certain forms 
of zero rating, such as where BIAS providers use zero rating to favor 
some edge products over others, especially as a business practice in 
exchange for consideration or to favor a provider's affiliates. 
Commenters claim that since adoption of the 2015 Open Internet Order, 
BIAS providers have adopted such programs that favor affiliates and 
charge competing edge providers high per-gigabyte rates. Commenters 
express concern that where there is an economic incentive to use zero 
rating to favor some edge products over others, zero rating can create 
the same harms to the open internet as paid prioritization. Further, 
the record reflects that sponsored data programs may favor large edge 
providers, as they are the only providers that can afford to 
participate in such programs. These comments also suggest that zero 
rating, like paid prioritization, is a practice that could result in 
distortions in the internet market by creating negative externalities 
that raise the cost for the entire edge market, which can decrease 
innovation and harm the virtuous cycle.
    525. Given the potential benefits and harms of zero-rating 
practices and their potential effect on the virtuous cycle, we will 
analyze zero-rating programs under the multi-factor analysis of the 
general conduct standard to ensure that innovative offerings are 
permitted and encouraged where the open internet is not harmed. By 
placing zero-rating programs under the general conduct standard, we do 
not preclude beneficial zero-rating innovations that may assist BIAS 
providers needing to manage scarce resources fairly and reasonably, 
while also potentially allowing lower-cost access to edge products of 
exceptional societal value or of value to particular consumers, as 
chosen by those consumers. But each zero-rating program can be 
different, and we find that applying the multi-factor analysis of the 
general conduct standard on a case-by-case basis allows for such 
innovations while curbing potentially market-distorting behavior by 
BIAS providers.
    526. To provide greater clarity, we identify certain types of 
programs that may raise concerns under the general conduct standard 
because they may be more likely to unreasonably interfere with, or 
unreasonably disadvantage, consumers and edge providers. Specifically, 
a zero-rated program is likely to raise concerns under the general 
conduct standard where it zero rates an edge product (1) in exchange 
for consideration (monetary or otherwise) from a third party, or (2) to 
favor an affiliated entity. These sponsored data programs are examples 
of business practices that are not a part of reasonable network 
management and therefore fall outside of ``best practices and technical 
standards'' developed by standards-setting organizations. The 
information in the record regarding sponsored data programs offered 
since 2015 indicates that those programs raise concerns under the 
general conduct standard, in that they may unreasonably interfere with 
end users' ability to select, access, and use BIAS or the lawful 
internet content, applications, services, or devices of their choice 
and unreasonably disadvantage edge providers' ability to make lawful 
content, applications, services, or devices available to end users, 
raising the cost to bring innovative new options to the edge market. 
Thousands of express comments filed in the docket state that ``[t]he 
agency must move forward a strong rule that rejects zero rating.''
    527. We are not convinced by commenters that argue that sponsored 
data programs should always be permitted because they lower the cost of 
subscribing to BIAS. The record suggests that zero-rating programs can 
increase the prices to consumers directly, and indirectly in the form 
of passed-through charges by the edge provider. Nor are we convinced by 
suggestions made by two commenters that sponsored data programs are the 
equivalent of toll free calling, presumably because with toll free 
calling, the business assumes the cost of the call rather than the 
consumer. On this basis alone, they suggest that sponsored data 
programs, like toll free calling, should be permitted. In suggesting 
that zero rating should be treated the same as toll free calling, 
however, one commenter notes that zero rating should still be ``offered 
on a nondiscriminatory basis with special attention paid to its use by 
content providers co-owned with the telecommunications provider to 
avoid cross-subsidy situations.'' We find this comparison to be 
unpersuasive, given the many distinctions between toll free calling in 
the telephony context, as compared to edge products offered over BIAS 
(e.g., an 800 number is used to reach a business, whereas the edge 
product is often the edge provider's entire business; the edge provider 
might be dependent on the BIAS provider to reach the BIAS provider's 
end users). Finally, other proponents of sponsored data zero-rating 
contend that such programs can increase consumer choice when accessing 
edge products. However, other commenters suggest sponsored data zero-
rating programs can distort consumer choice by pressuring consumers to 
access the cheaper edge products chosen for them by the BIAS provider, 
counter to the aims of an open internet. Despite these concerns, we 
will continue to evaluate such programs based on a totality of the 
circumstances, including potential benefits.
    528. While we identify sponsored data programs as the type of 
practices that may raise concerns under the general conduct standard, 
subject to a totality of circumstances determination, we note that 
there could be other types of zero-rating practices that are less 
likely to raise concerns under the general conduct standard, again 
based on a case-by-case evaluation. For example, some commenters have 
asserted that zero rating all edge products during low traffic hours or 
zero rating all of the edge products within the same category of 
products would be unlikely to cause unreasonable interference/
disadvantage to edge products, as well as being application agnostic 
under the general conduct rule factors. New America's Open Technology 
Institute asks the Commission to clarify that it is ``likely to find 
that a zero rating practice is unreasonably discriminatory if BIAS 
customers are offered an exemption from their data caps or limits for 
the applications, content or service provided by one or more specific 
edge providers to the exclusion of other similar or competing edge 
providers, whether or not the BIAS provider receives payment or is 
favoring an affiliate.'' While zero rating all apps in the same 
category is more likely to be an acceptable zero rating practice under 
the general conduct standard, providers, acting in good faith, may have 
difficulty determining which apps should and should not be included in 
the same categories or have other logistical issues when including 
similar apps. Accordingly, we will review such zero rating on a case-
by-case basis under the

[[Page 45514]]

general conduct standard. Professor van Schewick observes that there 
can be competitive concerns with any categorization. We will consider 
those practices, as well as any other zero-rating practices, under the 
general conduct standard, which relies on case-by-case review based on 
established factors.
    529. Application to Data Caps. Data caps--also referred to as usage 
allowances or in some cases, a type of usage-based billing--are a BIAS 
provider restriction on the amount of data a customer can consume over 
a specified period of time (e.g., 25GB per month). Professor Scott 
Jordan urges the Commission to find that data caps that do not qualify 
as reasonable network management are likely to violate the general 
conduct standard. In particular, Professor Jordan explains that, based 
on his research, data caps that are not tailored to a primary purpose 
of managing congestion are likely to have negative effects on 
competition, network investments, broadband deployment, innovation, and 
investment by edge providers; and are likely to reduce end user 
control. In their white paper submitted by USTelecom and NCTA, Dr. Mark 
Israel et al. dispute Professor Jordan's claims, asserting that usage-
based pricing ``offers a mechanism for broadband providers to create 
incentives for users to internalize the costs that they impose on 
broadband networks and to distribute the greater costs of the network 
onto those users that make greater use of the network while putting 
downward pressure on the prices that light users pay,'' and that if 
such plans were prohibited by the Commission, ``moderate and light 
users (including those with lower incomes) would likely be forced to 
pay more than if [data caps are] allowed.''
    530. We agree with Professor Jordan that the Commission can 
evaluate data caps under the general conduct standard. We do not at 
this time, however, make any blanket determinations regarding the use 
of data caps based on the record before us. The record demonstrates 
that while BIAS providers can implement data caps in ways that harm 
consumers or the open internet, particularly when not deployed 
primarily as a means to manage congestion, data caps can also be 
deployed as a means to manage congestion or to offer lower-cost 
broadband services to consumers who use less bandwidth. As such, we 
conclude that it is appropriate to proceed incrementally with respect 
to data caps, and we will evaluate individual data cap practices under 
the general conduct standard based on the facts of each individual 
case, and take action as necessary.
3. Transparency Rule
    531. Transparency has long been a key element of the Commission's 
framework for protecting the open nature of the internet, recognized 
and upheld by both the courts and Congress, and in the Order, we update 
our transparency rule to reflect that important role. Specifically, we 
modify the transparency rule by reversing the changes made to the text 
of the rule under the RIF Order, restoring the requirements to disclose 
certain network practices and performance characteristics eliminated by 
the RIF Order, and adopting changes to the means of disclosure, 
including adopting a direct notification requirement. We find that 
these actions appropriately balance the benefits to consumers and edge 
providers and the costs to BIAS providers. As explained below, we find 
that any changes or modifications to disclosures required by the 
Broadband Label Order (87 FR 76959 (Dec. 16, 2022)) are most 
appropriately addressed in response to that proceeding's FNPRM (87 FR 
77048 (Dec. 16, 2022)).
    532. In the 2010 Open Internet Order, the Commission adopted a 
transparency rule that required a BIAS provider to ``publicly disclose 
accurate information regarding the network management practices, 
performance, and commercial terms of its broadband internet access 
services sufficient for consumers to make informed choices regarding 
use of such services and for content, application, service, and device 
providers to develop, market, and maintain internet offerings.'' The 
2011 Advisory Guidance advised providers on appropriate methods for 
disclosing performance metrics, network practices, and commercial 
terms, and clarified how providers could comply with the requirement to 
provide such information to consumers at the ``point-of-sale.'' The 
2014 Advisory Guidance reminded providers that their transparency rule 
disclosures and advertising claims must be consistent.
    533. Finding that BIAS end-users and edge providers would be better 
served and informed by additional disclosures, the Commission adopted 
targeted, incremental enhancements to the 2010 transparency rule in the 
2015 Open Internet Order requiring providers to disclose additional 
information about performance characteristics, commercial terms, and 
network practices. Specifically, in regards to performance 
characteristics, the Commission required providers to disclose all 
performance characteristics, including packet loss, for each broadband 
service offered, and mandated that all performance-related disclosures 
reasonably reflect the performance a consumer could expect in the 
geographic area in which the consumer would be purchasing service. The 
Commission also required that BIAS providers provide more precise 
information regarding commercial terms, including the full monthly 
service charge during the promotional period, the full monthly charge 
after the expiration of a promotional rate, any one-time or recurring 
fees or surcharges, and data caps and allowances. Regarding network 
practices, the Commission required BIAS providers to make additional 
disclosures pertaining to congestion management, application-specific 
behavior, device attachment rules, and security. Lastly, the Commission 
required BIAS providers to directly notify end users ``if their 
individual use of a network will trigger a network practice, based on 
their demand prior to a period of congestion that is likely to have a 
significant impact on the end user's use of service.'' To assist 
providers with compliance, the Commission also offered a voluntary 
broadband label ``safe harbor.'' Shortly thereafter, the Commission 
also adopted the 2016 Advisory Guidance, detailing acceptable methods 
for reporting performance characteristics and clarifying the ``point-
of-sale'' requirements.
    534. In 2017, however, the Commission reversed course and in the 
RIF Order eliminated the enhancements adopted by the 2015 Open Internet 
Order, including the requirements to: (1) disclose packet loss; (2) 
ensure performance related-characteristics reasonably reflect the 
performance a consumer could expect in the geographic area in which the 
consumer would be purchasing service; (3) ensure network performance is 
measured over a reasonable period of time and during times of peak 
service; (4) disclose any network practice applied to traffic 
associated with a particular user or user group, including any 
application-agnostic degradation of service to a particular end user; 
and (5) directly notify a user if an individual use of a network would 
trigger a network practice based on demand prior to a period of 
congestion that is likely to have a significant impact on the end 
user's service. The Commission also eliminated the 2016 Advisory 
Guidance, which advised providers on how to report performance 
characteristics consistent with the 2015 Open Internet Order 
enhancements. Additionally,

[[Page 45515]]

because the RIF Order eliminated the bright-line rules prohibiting 
blocking, throttling, and paid or affiliated prioritization practices, 
the Commission revised the obligations of the transparency rule to 
require BIAS providers to disclose such practices. The Commission also 
revised the text of the rule to require that any person providing 
broadband internet access service shall publicly disclose accurate 
information regarding the network management practices, performance, 
and commercial terms of its broadband internet access services to 
enable consumers to make informed choices regarding the purchase and 
use of such services and entrepreneurs and other small businesses to 
develop, market, and maintain internet offerings, in order to reflect 
the Commission's reliance on section 257 of the Act as authority for 
the transparency rule. The Verizon court upheld the transparency rule 
as a reasonable exercise of the Commission's authority under section 
706 of the 1996 Act. In the RIF Order, the Commission departed from its 
long-held view and instead concluded that the directives to the 
Commission in section 706 of the 1996 Act are better interpreted as 
hortatory, and not as grants of regulatory authority. As a result, the 
Commission relied on authority under section 257 of the Act for the 
transparency rule. Section 257(a) directs the Commission to ``identify[ 
] and eliminat[e] . . . market entry barriers for entrepreneurs and 
other small businesses in the provision and ownership of 
telecommunications services and information services, or in the 
provision of parts or services to providers of telecommunications 
services and information services.'' Section 257(c) directed the 
Commission to triennially report to Congress on such marketplace 
barriers and how they have been addressed by regulation or could be 
addressed by recommended statutory changes. Congress later repealed 
subsection (c) of section 257 and replaced it with section 13, which 
imposes a substantially similar reporting requirement.
    535. As part of the Infrastructure Act in 2021, Congress directed 
the Commission to promulgate rules for an FDA nutrition-style label of 
broadband facts to be displayed at the point-of-sale by providers based 
on the 2015 Open Internet Order broadband label safe harbor. In 
November 2022, the Commission adopted the Broadband Label Order 
implementing this congressional direction, which requires ``ISPs to 
display, at the point of sale, labels that disclose certain information 
about broadband prices, introductory rates, data allowances, and 
broadband speeds, and to include links to information about their 
network management practices, [and] privacy policies.'' The Commission 
recently declined broad reconsideration of the broadband label rules in 
the Broadband Label Reconsideration Order (88 FR 63853 (Sept. 18, 
2023)) but does have an ongoing Broadband Label FNPRM (87 FR 77048 
(Dec. 16, 2022)). Providers also must make clear whether the price for 
a given service is an introductory rate and, if so, what the price will 
be after the introductory period ends. Since April 10, 2024, providers 
with more than 100,000 subscribers have been obligated to display the 
broadband label.
a. Content of the Transparency Rule
    536. We adopt the transparency rule originally adopted in 2010 and 
reaffirmed in 2015. Doing so caters to a broader relevant audience of 
interested parties than the audience identified in the RIF Order. As 
such, we revise the transparency rule to provide that a person engaged 
in the provision of broadband internet access service shall publicly 
disclose accurate information regarding the network management 
practices, performance, and commercial terms of its broadband internet 
access services sufficient for consumers to make informed choices 
regarding use of such services and for content, application, service, 
and device providers to develop, market, and maintain internet 
offerings.
    537. The RIF Order revised the text of the transparency rule, which 
had been in place since 2010 and upheld by the courts twice as a lawful 
exercise of the Commission's regulatory authority under section 706 of 
the 1996 Act, and independently under the Commission's exercise of its 
authority under Title II. When the Commission found it did not have 
independent regulatory authority under section 706 in the RIF Order, 
finding instead that section 706 was ``merely hortatory,'' it 
eliminated the Commission's underlying authority for the transparency 
rule. Instead, it chose to rely solely on section 257 of the Act and 
revised the text of the rule to reflect that reliance. As discussed 
further below, we reaffirm our interpretation of section 706 of the 
1996 Act as an independent source of regulatory authority, and rely on 
our regulatory authority under section 706, our authority under Title 
II of the Act to prohibit unjust and unreasonable practices, and our 
authority under section 257 as the legal bases for the transparency 
rule. As such, we return to the prior formulation of the transparency 
rule, which more appropriately captures the relevant audience of BIAS 
providers' transparency disclosures--content, application, service, and 
device providers. Reinstating the text of the transparency rule from 
the 2010 Open Internet Order is also consistent with the Commission's 
finding in the Broadband Label Order that while the labels primarily 
serve as a quick reference tool, ``the transparency rule seeks to 
enable a deeper dive into details of broadband internet service 
offerings, which could be relevant not only for consumers as a whole, 
but also for consumers with particularized interests or needs, as well 
as a broader range of participants in the internet community--notably 
including the Commission itself.'' We find that content, application, 
service, and device providers are vital to the health of the internet 
ecosystem and that given their reliance on broadband services, 
returning the scope of the transparency rule to explicitly cover their 
interests is warranted and alleviates any confusion created by the 
changes adopted in the RIF Order.
    538. Consistent with prior Commission guidance, we make clear that 
BIAS providers must maintain the accuracy of all disclosures. Thus, 
``whenever there is a material change in a provider's disclosure of 
commercial terms, network practices, or performance characteristics, 
the provider has a duty to update the disclosure in a manner that is 
`timely and prominently disclosed in plain language accessible to 
current and prospective end users and edge providers, the Commission, 
and third parties who wish to monitor network management practices for 
potential violations of open internet principles.' '' A ``material 
change'' is ``any change that a reasonable consumer or edge provider 
would consider important to their decisions on their choice of 
provider, service, or application.''
    539. Beginning with the 2010 Open Internet Order, the Commission 
has provided guidance on the network management practices, performance, 
and commercial terms that BIAS providers must disclose. We repeat the 
relevant guidance here, updated as appropriate based on the record.
Network Practices
     Congestion Management. Descriptions of congestion 
management practices, if any. These descriptions should include the 
types of traffic subject to practices; purposes served by practices; 
the practices' effects on end

[[Page 45516]]

users' experience; criteria used in practices, such as indicators of 
congestion that trigger a practice, including any usage limits 
triggering the practice, and the typical frequency of congestion; usage 
limits and the consequences of exceeding them; and references to 
engineering standards, where appropriate.
     User-Based Practices. Practices that are applied to 
traffic associated with a particular user or user group, including any 
application-agnostic degradation of service to a particular end user, 
the purpose of the practice, which users or data plans may be affected, 
the triggers that activate the use of the practice, the types of 
traffic that are subject to the practice, and the practice's likely 
effects on end users' experiences.
     Affiliated Prioritization. Any practice that directly or 
indirectly favors some traffic over other traffic, including through 
use of techniques such as traffic shaping, prioritization, or resource 
reservation, to benefit an affiliate, including identification of the 
affiliate.
     Paid Prioritization. Any practice that directly or 
indirectly favors some traffic over other traffic, including through 
use of techniques such as traffic shaping, prioritization, or resource 
reservation, in exchange for consideration, monetary or otherwise.
     Zero Rating. Any practice that exempts edge services, 
devices, applications, and content (edge products) from an end user's 
usage allowance or data cap.
     Application-Specific Behavior. Whether and, if applicable, 
why the provider blocks or rate-controls specific protocols or protocol 
ports, modifies protocol fields in ways not prescribed by the protocol 
standard, or otherwise inhibits or favors certain applications or 
classes of applications.
     Device Attachment Rules. Any restrictions on the types of 
devices and any approval procedures for devices to connect to the 
network. Mobile providers must disclose their third-party device and 
application certification procedures, if any; clearly explain their 
criteria for any restrictions on the use of their network; and 
expeditiously inform device and application providers of any decisions 
to deny access to the network or of a failure to approve their 
particular devices or applications. Mobile providers should also follow 
the guidance the Commission provided to licensees of the upper 700 MHz 
C Block spectrum regarding compliance with their disclosure 
obligations, particularly regarding disclosure to third-party 
application developers and device manufacturers of criteria and 
approval procedures (to the extent applicable). For example, these 
disclosures include, to the extent applicable, establishing a 
transparent and efficient approval process for third parties, as set 
forth in Rule Sec.  27.16(b).
     Security. Practices used to ensure end-user security or 
security of the network, including types of triggering conditions that 
cause a mechanism to be invoked (but excluding information that could 
reasonably be used to circumvent network security). As the Commission 
has previously explained, we expect BIAS providers to exercise their 
judgment in deciding whether it is necessary and appropriate to 
disclose particular security measures. We do not expect BIAS providers 
to disclose internal network security measures that do not bear on a 
consumer's choices.
Performance Characteristics
     Service Description. A general description of the service, 
including the service technology, expected and actual access speed and 
latency, packet loss, and the suitability of the service for real-time 
applications. Fixed BIAS providers may use the methodology from the 
Measuring Broadband America (MBA) program to measure actual 
performance, or may disclose actual performance based on internal 
testing, consumer speed test data, or other data regarding network 
performance, including reliable, relevant data from third-party 
sources. BIAS providers that have access to reliable information on 
network performance may disclose the results of their own or third-
party testing. Those mobile BIAS providers that do not have reasonable 
access to such network performance data may disclose a Typical Speed 
Range (TSR) representing the range of speeds and latency that can be 
expected by most of their customers, for each technology/service tier 
offered, along with a statement that such information is the best 
approximation available to the broadband provider of the actual speeds 
and latency experienced by its subscribers. Actual network performance 
data should be reasonably related to the performance the consumers 
would likely experience in the geographic area in which the consumer is 
purchasing service, and should be measured in terms of average 
performance over a reasonable period of time and during times of peak 
usage.
     Impact of Non-BIAS Data Services. What non-BIAS data 
services, if any, are offered to end users; whether and how any non-
BIAS data services may affect the last-mile capacity available for, and 
the performance of, BIAS; and a description of whether the service 
relies on particular network practices and whether similar 
functionality is available to applications and services offered over 
BIAS.
Commercial Terms
     Pricing. For example, monthly prices, usage-based fees, 
other fees, data caps and allowances, and fees for early termination or 
additional network services. Monthly pricing shall include the full 
monthly service charge, and any promotional rates should be clearly 
noted as such, specify the duration of the promotional period, and note 
the full monthly service charge the consumer will incur after the 
expiration of the promotional period. We clarify that price disclosure 
requirements, which have been part of the transparency rule since 2010, 
will not lead to the publishing of data that will act as a de facto 
tariff system, as the International Center for Law & Economics 
cautions. We observe that the transparency requirements, including 
publication of commercial terms, such as rates, have been upheld by the 
D.C. Circuit under section 706 and in any event, Congress specifically 
gave the Commission authority to require that broadband providers 
publish their rates in the IIJA. Other fees include all additional one 
time and/or recurring fees and/or surcharges the consumer may incur 
either to initiate, maintain, or discontinue service, including the 
name, definition, and cost of each additional fee. These may include 
modem rental fees, installation fees, service charges, and early 
termination fees, among others. BIAS providers should disclose any data 
caps or allowances that are a part of the plan the consumer is 
purchasing, as well as the consequences of exceeding the cap or 
allowance (e.g., additional charges, loss of service for the remainder 
of the billing cycle).
     Privacy Policies. For example, whether network management 
practices entail inspection of network traffic, and whether traffic 
information is stored, provided to third parties, or used by the 
carrier for non-network management purposes.
     Redress Options. Practices for resolving end-user and edge 
provider complaints and questions.
    Below, we discuss in more detail our rationale for revisions to the 
current transparency rule.
    540. Network Practices. As an initial matter, because we no longer 
permit blocking, throttling, affiliated prioritization, or paid 
prioritization under the Order, we find that there is no need to 
continue requiring providers to report such practices as was required 
under the RIF Order, except to the

[[Page 45517]]

extent that a provider engages in paid or affiliated prioritization 
subject to a Commission waiver. We agree with commenters who assert 
that the RIF Order created unnecessary confusion around the required 
network practice disclosures, and we reaffirm that providers must 
disclose congestion management practices, application-specific 
behavior, device attachment rules, and security practices. We also 
reaffirm that the transparency rule requires that BIAS providers 
disclose any practices applied to traffic associated with a particular 
user or user group, including any application-agnostic degradation of 
service to a particular end user. As the Commission explained in the 
2015 Open Internet Order, for example, a BIAS provider ``may define 
user groups based on the service plan to which users are subscribed, 
the volume of data that users send or receive over a specified time 
period of time or under specific network conditions, or the location of 
users.'' We also require that ``disclosures of user-based or 
application-based practices [must] include the purpose of the practice, 
which users or data plans may be affected, the triggers that activate 
the use of the practice, the types of traffic that are subject to the 
practice, and the practice's likely effects on end users' 
experiences.'' In addition, we require BIAS providers to disclose any 
zero-rating practices, specifically, any practice that exempts 
particular edge services, devices, applications, and content (edge 
products) from an end user's usage allowance or data cap. We find that 
requiring disclosure of information pertaining to zero-rating practices 
will better enable the Commission and internet researchers to identify 
those zero-rating practices that may harm the openness of the internet. 
And as the Commission has previously explained, ``[t]hese disclosures 
with respect to network practices are necessary: for the public and the 
Commission to know about the existence of network practices that may be 
evaluated under the rules, for users to understand when and how 
practices may affect them, and for edge providers to develop internet 
offerings.''
    541. We decline the request by one commenter to require BIAS 
providers to make disclosures that would permit end users to identify 
application-specific usage or to distinguish which user or device 
contributed to which part of the total data usage. We find, as we did 
in the 2015 Open Internet Order, that collection of application-
specific usage data by a BIAS provider may require use of deep packet 
inspection practices that may pose privacy concerns for consumers.
    542. Performance Characteristics. We reinstate the enhanced 
performance characteristics disclosures eliminated by the RIF Order to 
require BIAS providers to disclose packet loss under the transparency 
rule. This proceeding is not the appropriate forum for us to determine 
whether such disclosures should be added to the broadband label as some 
commenters request, and in any event, the Commission recently declined 
this suggested addition to the broadband label in the Broadband Label 
proceeding. As Professor Scott Jordan explains, the three primary 
network performance metrics are speed (throughput), latency (end-to-end 
delay), and packet loss, which have been consistently recognized as 
such since the early days of the internet. Latency and packet loss are 
particularly relevant metrics to real-time applications. We agree with 
Professor Jordan that ``both latency and packet loss are critical to 
the user-perceived performance of real-time applications,'' such as 
video-conferencing applications, and the record reflects that the 
suitability of BIAS for real-time applications depends on both of these 
metrics. We believe that such information is also readily available to 
BIAS providers from commercial network performance measurement 
companies, along with speed and latency measurements.
    543. Contrary to AT&T's assertions that requiring disclosure of 
packet loss would be burdensome, we expect that many BIAS providers 
``already measure packet loss today, as this primary network 
performance metric is required in order to determine the suitability of 
their [services] for the real-time applications that are important to 
many of their customers.'' As Professors Peha and Jordan explain, 
``measurements of latency, which are already required, inevitably 
enable simultaneous measures of packet loss with de minimis effort.'' 
And to the extent CTIA argues that the Office of Management and 
Budget's (OMB)'s previous ``refusal to approve packet loss should 
foreclose collecting that information from mobile providers,'' we 
disagree. We also note that interested parties will have the 
opportunity to comment on any burdens associated with these 
requirements pursuant to the Paperwork Reduction Act (PRA). In its 2016 
review, OMB found that ``packet loss will not be a required performance 
metric for mobile disclosure'' at this time, and directed the 
Commission to assess ``i. the practical utility of packet loss as it 
relates to mobile performance disclosure;'' ``ii. `accurate' methods of 
calculating mobile packet loss (i.e., drive testing, voluntary app, 
etc.);'' and ``iii. whether using voluntary consensus standards would 
be a viable alternative.'' We agree with Professors Peha and Jordan 
that the ``practical utility of packet loss as it relates to mobile 
performance is clearly established by the rapidly increasing number of 
end users who utilize video conference apps on their smartphones.'' 
Finally, while we acknowledge that the Commission recently declined to 
require packet loss as part of the broadband label, the Commission 
nonetheless found that packet loss ``may provide useful information to 
certain consumers.'' We also observe that the disclosures required by 
the transparency rule serve to inform more than just consumers--they 
also serve edge providers and other interested third parties, including 
the Commission. Limiting the transparency rule requirements to 
information displayed via the broadband label would therefore not 
provide adequate insight for edge providers, internet researchers, 
certain consumers, or the Commission. As such, we reject arguments by 
commenters that the Commission should not require packet loss 
disclosure under the transparency rule because it declined to do so in 
the Broadband Label proceeding. To the extent commenters express 
concern regarding the performance characteristics disclosures required 
under the Broadband Label Order, the Broadband Label proceeding is the 
appropriate forum in which to address them.
    544. We also reinstate the transparency requirements in the 2015 
Open Internet Order and 2016 Advisory Guidance that require performance 
characteristics to be reported with greater geographic granularity and 
to be ``measured in terms of average performance over a reasonable 
period of time and during times of peak usage.'' The record reflects 
that mobile BIAS providers ``have access to substantially different 
amounts of spectrum in different geographical regions, and thus speeds 
may vary substantially by region,'' and that disclosure requirements 
with geographic granularity are ``essential to determine real-time 
application performance and provide consumers with necessary 
information to make an informed choice.'' We thus disagree with AT&T 
that disclosure of actual network performance reasonably related to the 
performance that consumers would likely experience in the geographic

[[Page 45518]]

areas in which a customer is purchasing service is of ``little to no 
meaningful or beneficial use for consumers to make informed 
decisions.'' Further, we find that peak usage performance can differ 
substantially from non-peak usage period performance and from all day 
performance, and we agree that ``peak usage period speeds are more 
useful information to consumers'' than are speeds calculated from 
measurements over 24-hour periods. As such we find it appropriate to 
reinstate these enhancements to the transparency rule.
    545. We are not persuaded by AT&T's assertions that reporting 
actual peak usage metrics on a geographically disaggregated basis would 
be ``an enormous undertaking,'' and agree with Professor Jordan that 
``it is implausible that broadband providers do not already today 
measure broadband performance in various geographical regions,'' as 
providers likely use that information to inform their decisions 
regarding additional spectrum purchases in various geographical regions 
as well decisions about when and where to place additional cellular 
antennas to improve performance in these granular geographic areas.
    546. In response to concerns about reporting peak usage in the 
record, we make clear that peak usage periods may be based solely on 
the local time zone, and that BIAS providers retain flexibility to 
determine the appropriate peak usage periods for their network 
performance metrics (but must disclose the peak usage periods chosen 
for such disclosures). We decline to otherwise codify specific 
methodologies for measuring the actual performance required by the 
transparency rule, finding, as in 2010 and 2015, that there is a 
benefit in permitting measurement methodologies to evolve and improve 
over time, with further guidance from Bureaus and Offices--like in 2011 
and 2016--as to acceptable methodologies. We delegate authority to the 
Office of Engineering Technology (OET) and the Consumer and 
Governmental Affairs Bureau (CGB) to lead this effort. We expect this 
effort will include, among other things, examining the appropriate 
geographic measurement units for reporting. We need not determine, at 
this time, the accuracy of CTIA's assertion that ``consumers have no 
idea what [Cellular Market Areas (CMAs)] are, and even if they did, 
they likely would not know what CMA they are in at any given time since 
they use wireless on the go.'' Consumers know where they live and 
likely purchased service, and as long as BIAS providers ``show the 
measurements associated with the CMA containing the consumer's listed 
address,'' as T-Mobile did for several years following the 2015 Open 
Internet Order, the consumer ``does not have to know where the CMAs 
are, or even what a CMA is.''
    547. The record demonstrates, however, that unlike their larger 
counterparts, BIAS providers that have 100,000 or fewer broadband 
subscribers may generally lack access to the resources necessary to 
easily comply with these enhanced performance characteristic 
transparency requirements. As such, we temporarily exempt (with the 
potential to become permanent) BIAS providers that have 100,000 or 
fewer broadband subscribers as per their most recent FCC Form 477, 
aggregated over all affiliates of the provider, from the requirements 
to disclose packet loss and report their performance characteristics 
with greater geographic granularity and to be measured in terms of 
average performance over a reasonable period of time and during times 
of peak usage. We observe that our description of small providers to 
which we apply this exemption aligns with exceptions the Commission has 
previously provided for small providers, including the implementation 
of the Safe Connections Act, a longer implementation period for certain 
providers in the Broadband Label proceeding, a delayed deadline to 
implement caller ID authentication rules stemming from the TRACED Act, 
and in describing which small providers are exempt from certain rural 
call completion rules. While we believe that reinstating these 
performance characteristic transparency enhancements will have minimal 
costs for most larger BIAS providers, we take seriously the concerns 
raised in the record about the additional compliance costs for small 
businesses. Moreover, we observe that the Commission provided a 
temporary exception (with the potential to become permanent) for some 
providers from the enhancements adopted in the 2015 Open Internet 
Order. In light of the concerns in the record, past precedent, and the 
expenditures BIAS providers that have 100,000 or fewer broadband 
subscribers have already made--and continue to make--to address the 
requirements adopted by the Broadband Label Order, we find that an 
exemption for these providers is supported in this case. We note that 
in each of those proceedings, the Commission specifically sought 
comment on, and considered the impact of, its proposals on small 
entities, consistent with the requirements of the Regulatory 
Flexibility Act. We delegate to CGB the authority to determine whether 
to maintain the exemption, and if so, the appropriate bounds of the 
exemption. We direct CGB to seek comment on the question and adopt an 
order announcing whether it is maintaining an exemption by no later 
than 18 months after publication of the Order in the Federal Register. 
WISPA also requests that the Commission apply any temporary or 
permanent exemptions to BIAS providers with 250,000 or fewer 
subscribers. WISPA provides no explanation as to how many additional 
small providers would be covered by its proposed change to the scope of 
our exemptions, nor does it explain why such an expansion ins scope is 
needed, other than asserting that ``[i]f exempting small ISPs from 
these rules was important in 2016, it is all the more important now 
given the other burdensome regulations that the Commission has imposed 
on BIAS providers.'' As such, we decline to expand the temporary 
exemptions in the Order to BIAS providers with 250,000 or fewer 
subscribers.
    548. We decline, however, to require disclosure of additional 
performance characteristics, as suggested by Measurement Lab, such as 
the source, location, timing, or duration of network congestion; and 
packet corruption and jitter. Noting that ``congestion may originate 
beyond the broadband provider's network and the limitations of a 
broadband provider's knowledge of some of these performance 
characteristics,'' the Commission specifically declined to require the 
source, location, timing, or duration of network congestion in 2015. 
The Commission also declined to include packet corruption and jitter 
because of concerns around the difficulty of defining metrics for such 
performance characteristics. We find that Measurement Lab fails to 
adequately address the concerns expressed by the Commission in the 2015 
Open Internet Order and we thus decline to require these additional 
disclosures.
    549. Commercial Terms. We find that additional disclosures 
pertaining to commercial terms are not necessary at this time. The 
broadband label now requires largely the same commercial term 
disclosures, including information about promotional rates, fees, and/
or surcharges, and all data caps or data allowances as those the 
Commission required in the 2015 Open Internet Order. Thus, we find no 
need to restore the commercial term enhancements required by the 2015 
Open Internet Order. To the extent the record identifies requests for 
additional pricing information, we find that a potential addition aimed 
at informing consumers

[[Page 45519]]

about pricing would be best considered in the broadband label docket. 
We also decline to require more extensive privacy disclosures, as some 
commenters request, as we find that this is not the appropriate 
proceeding in which to address the content of BIAS providers' privacy 
notices.
    550. Requested Updates to the Broadband Label. The record indicates 
that in addition to packet loss, commenters urge a wide variety of 
additional disclosures or changes to the broadband label, including 
requirements to disclose speed ranges for fixed and mobile broadband; 
to change how speeds are reported (e.g., change ``typical'' speeds and 
latency to median speeds and median latency); to include specific 
privacy disclosures directly on the label; to incorporate network 
management tables directly on the label; to include cybersecurity 
disclosures; to include network reliability measurements (e.g., number 
of minutes of outage per year); and to include the labels on a user's 
monthly bill (in addition to the point of sale). The Commission 
considered many of these requests as part of the record in the 
Broadband Label proceeding, and rejected them in the Broadband Label 
Order. We find that such requests are more properly considered in that 
proceeding, as are requests for additional changes or additions that 
were raised in the Broadband Label FNPRM.

b. Means of Disclosure

    551. We agree with New America's Open Technology Institute that 
``[t]o be truly `publicly available,' these disclosures must be where 
the public would expect to find them--on provider websites marketing 
these services.'' As such, we require providers to disclose all 
information required by the transparency rule on a publicly-available, 
easily-accessible website. We believe that consumers expect to find 
information about a provider's services on the provider's public 
website and that most consumers would not consider visiting the 
Commission's website, particularly the ECFS, to find information about 
a provider's services. We find that by requiring providers to provide 
disclosures on their own websites, consumers will have greater access, 
and if there is any additional cost to providers, it would be minimal. 
Ensuring disclosures under the transparency rule are accessible to 
individuals with disabilities remains a priority, and as such, we 
require BIAS providers to post the disclosures on their websites using 
an accessible format. Consistent with the Commission's approach in the 
Broadband Label Order, we strongly encourage BIAS providers to use the 
most current version of the Web Content Accessibility Guidelines, an 
approach unopposed in the record.
    552. Machine-Readable Format. As with the broadband label, we 
require that all transparency disclosures made pursuant to the 
transparency rule also be made available in machine-readable format. By 
``machine readable,'' we mean providing ``data in a format that can be 
easily processed by a computer without human intervention while 
ensuring no semantic meaning is lost.'' The machine-readable 
disclosures should be made available in a spreadsheet file format such 
as the comma-separated values (.csv) format and be available on the 
same page and accessible via the same URL as the relevant ``non-
machine-readable'' disclosures (e.g., network practice disclosures 
should be available in both the traditional narrative format and the 
machine-readable format on the same page of the provider's website). We 
agree with commenters who note that machine readability enables 
interested parties to better compare the transparency disclosures of 
different companies. As a result, this information can be more easily 
studied by third parties and then more easily conveyed by those third 
parties to end users, who may otherwise be unable to, or uninterested 
in, understanding detailed privacy or network management practices. We 
find, therefore, that machine readability will further increase 
transparency. Notably, no commenter objects to this specific 
requirement in the record. We note that some commenters did object to 
the machine-readability requirement in the Broadband Label Order. In 
that proceeding, however, we found that transferring the data into 
machine-readable format did not impose a high burden upon providers or 
require a high degree of technical difficulty. As no commenter has 
raised any specific objections to machine-readability in the current 
proceeding, we conclude that there is no reason to depart from the 
findings we made with regard to the machine-readability requirement for 
the broadband label.
c. Direct User Notification
    553. Consistent with our findings in the 2015 Open Internet Order, 
we require BIAS providers to directly notify end users ``if their 
individual use of a network will trigger a network practice, based on 
their demand prior to a period of congestion, that is likely to have a 
significant impact on the end user's use of the service.'' The 
Commission eliminated this requirement in the RIF Order, finding it 
``unduly burdensome'' for BIAS providers, without any analysis. 
Commenters in opposition of such a requirement contend that because 
consumers are provided advance notice of network management practices, 
any subsequent notification about particular actions is unnecessary and 
unduly burdensome to providers. As the Commission explained in the 2015 
Open Internet Order, however, ``[t]he purpose of such notification is 
to provide the affected end users with sufficient information and time 
to consider adjusting their usage to avoid application of the 
practice.'' While our transparency rule requires BIAS providers to 
disclose details regarding their network practices, the record provides 
no evidence that consumers are easily able to track their usage to 
identify when their usage is likely to trigger a network practice so 
that they may then adjust their usage accordingly. We find that because 
providers must already monitor their networks in order to apply network 
practices when a user takes a particular action, a specific event 
occurs, or a data cap threshold is reached, providers are better 
positioned to advise customers about the circumstances surrounding the 
applied network practice than are users positioned to track and 
identify such occurrences on their own.
    554. We are also skeptical of WTA's assertion that ``direct 
notification would entail major hardship and unnecessary expense for 
service providers to maintain accurate and up-to-date versions of the 
frequently changing lists of their customers and contact addresses 
(whether email, text or physical),'' as providers need customer contact 
information for billing purposes. Thus, because providers must 
necessarily actively monitor their networks in order to apply network 
practices and already collect contact information for their users, we 
believe that any additional burden would come from identifying the 
particular application of a network practice and notifying the user. We 
do not anticipate that the burdens associated with notifying customers 
would be significant, as we expect that most providers who offer plans 
without unlimited data already provide an automated notification to 
users notifying them that they will be billed an additional fee for 
additional data upon reaching their data threshold or provide some 
method of tracking monthly usage. For example, mobile BIAS providers 
either automatically notify users when they will soon go over

[[Page 45520]]

a data cap or permit them to turn on data usage notifications. AT&T 
provides notification to users subject to a data threshold when they 
reach 75% of the threshold. Fixed providers with data caps also provide 
similar notifications or offer similar tools to track usage. Therefore, 
we find that the benefits to consumers outweigh any additional costs to 
BIAS providers, particularly since, as in 2015, we do not require real-
time notifications.
    555. Temporary Exemption for BIAS Providers with 100,000 or Fewer 
Broadband Subscribers. In response to concerns expressed in the record 
pertaining to the direct customer disclosure requirement, we provide a 
temporary exemption (with the potential to become permanent) to the 
direct notification requirement for BIAS providers that have 100,000 or 
fewer broadband subscribers as per their most recent FCC Form 477, 
aggregated over all provider affiliates. We observe that this temporary 
exemption aligns with the longer implementation period for the 
broadband label applicable to certain providers. We believe that 
providers that have 100,000 or fewer broadband subscribers are less 
likely to already have in place the tools and mechanisms needed to 
allow customers to track usage or provide automated direct 
notifications, and we therefore afford such providers additional time 
to develop appropriate systems. We delegate to CGB the authority to 
determine whether to maintain the exemption, and if so, the appropriate 
bounds of the exemption. We direct CGB to seek comment on the question 
and adopt an Order announcing whether it is maintaining an exemption no 
later than 18 months after publication of the Order in the Federal 
Register.

C. Reasonable Network Management

    556. The record broadly supports maintaining an exception for 
reasonable network management. We agree that a reasonable network 
management exception to the no-blocking rule, the no-throttling rule, 
and the general conduct rule is necessary for BIAS providers to 
optimize overall network performance and maintain a consistent quality 
experience for consumers while carrying a variety of traffic over their 
networks. The transparency rule does not include an exception for 
reasonable network management. We clarify, however, that the 
transparency rule ``does not require public disclosure of competitively 
sensitive information or information that would compromise network 
security or undermine the efficacy of reasonable network management 
practices.'' Therefore, the no-blocking rule, the no-throttling rule, 
and the general conduct rule will be subject to reasonable network 
management for both fixed and mobile BIAS providers. We note that 
unlike conduct implicating the no-blocking, no-throttling, or general 
conduct rule, paid or affiliated prioritization is not a network 
management practice because it does not primarily have a technical 
network management purpose. In retaining the exception, we return to 
the definition of reasonable network management adopted by the 
Commission in 2015, providing that 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 internet access service.
    557. When considering whether a practice violates the no-blocking 
rule, no-throttling rule, or general conduct rule, the Commission may 
first evaluate whether a practice falls within the exception for 
reasonable network management. For a practice to even be considered 
under this exception, a BIAS provider must first show that the practice 
is primarily motivated by a technical network management justification 
rather than other business justifications. If a practice is primarily 
motivated by another non-network related justification, then that 
practice will not be considered under this exception. The term 
``particular network architecture and technology'' refers to the 
differences across broadband access platforms of any kind, including 
cable, fiber, DSL, satellite, unlicensed Wi-Fi, fixed wireless, and 
mobile wireless.
    558. We find that permitting reasonable network management 
practices that are primarily technical in nature will provide BIAS 
providers sufficient flexibility to manage their networks, while at the 
same time will help protect against BIAS providers using the exception 
to circumvent open internet protections. We agree with Professor Jon 
Peha that if a practice can be considered reasonable network management 
``simply because it is needed in support of a `business practice,' this 
opens potentially a large loophole unless one severely limits the 
meaning of `business practice.' '' Likewise, as Public Knowledge 
explains, ``any traffic management practice, including one that is 
nakedly anticompetitive, can be characterized as having some technical 
purpose--for example, to slow down a rival's traffic.'' We agree that 
restricting the scope of ``reasonable network management'' to practices 
that are primarily justified as traffic management techniques will help 
prevent the exception from becoming a loophole permitting otherwise 
unlawful business and traffic management practices.
    559. We believe that the reasonable network management exception 
provides both fixed and mobile BIAS providers sufficient flexibility to 
manage their networks. We recognize, consistent with the consensus in 
the record, that the additional challenges involved in mobile BIAS 
network management mean that mobile BIAS providers may have a greater 
need to apply network management practices, including mobile-specific 
network management practices, and to do so more often to balance supply 
and demand while accommodating mobility. As the Commission has 
previously observed, mobile network management practices must address 
dynamic conditions that fixed networks typically do not, such as the 
changing location of users as well as other factors affecting signal 
quality. Similarly, SpaceX argues that satellite providers require 
additional network management flexibility to account for the same 
challenges that the 2015 Open Internet Order recognized in the context 
of mobile and Wi-Fi networks, including dynamic conditions, spectrum 
constraints, and congestion issues. WISPA likewise explains that fixed 
wireless providers face challenges ``managing networks of multiple 
spectrum bands.'' The ability to address these dynamic conditions in 
mobile, wireless, and satellite network management is especially 
important given capacity constraints these BIAS providers, many of them 
small, face. The Commission will take into account when and how network 
management measures are applied as well as the particular network 
architecture and technology of the BIAS in question, in determining if 
a network management practice is reasonable.
    560. We disagree with Ericsson that just because a network 
management practice can have both a primary technical reason and 
include other business practices, our definition ``presents a false 
dichotomy.'' As an initial matter, the standard we adopt in the Order 
does not require that a network management practice's purpose be solely 
technical in nature, but rather primarily technical in nature. The 
exemption does not exclude practices

[[Page 45521]]

that have multiple purposes, so long as the practice's purpose is 
primarily technical. It would, however, not extend to network 
management practices established for other purposes that lack a 
primarily technical purpose. To the extent that a BIAS provider engages 
in a network management practice for purposes other than a primarily 
technical reason, such practice is not per se prohibited, but would be 
evaluated under the general conduct standard or assessed for compliance 
with the prohibitions against blocking and throttling. We thus reject 
assertions in the record that distinctions of intent are not workable, 
that technical and business decision-making are not severable, or that 
the 2015 definition will adversely impact ``business models that allow 
mobile operators to optimize their networks in response to consumers' 
choices and could even bar any practice that affects the provider's 
costs or revenues.'' Further, we find unavailing commenters' assertions 
that the reasonable network management exception we adopt in the Order 
is vague or ambiguous. While we acknowledge, as the Commission has 
previously, the advantages a more detailed definition of reasonable 
network management can have on long-term network investment and 
transparency, we conclude that a more detailed definition risks quickly 
becoming outdated as technology evolves, as borne out by commenters' 
own assertions.
    561. Evaluating Network Management Practices. We recognize the need 
to ensure that the reasonable network management exception will not be 
used to circumvent the open internet rules while still allowing BIAS 
providers flexibility to experiment and innovate as they reasonably 
manage their networks. We therefore elect to maintain a case-by-case 
approach. Case-by-case analysis will allow the Commission to use the 
conduct-based rules adopted in the Order to take action against 
practices that are known to harm consumers without interfering with 
BIAS providers' beneficial network management practices. Beneficial 
practices include protecting their broadband internet access services 
against malicious content or offering a service limited to ``family 
friendly'' materials to end users who desire only such content. The 
case-by-case review also allows sufficient flexibility to address 
mobile-specific management practices because, by the terms of our rule, 
a determination of whether a network management practice is reasonable 
takes into account the particular network architecture and technology. 
We also note that our transparency rule requires disclosures that 
provide an important mechanism for monitoring whether providers are 
inappropriately exploiting the exception for reasonable network 
management.
    562. We decline to specify particular network management practices 
as per se unreasonable, as advocated by WISPA, in order to afford BIAS 
providers maximum flexibility in managing their dynamic networks. While 
we are sensitive to the needs of small BIAS providers, we do not 
believe the record currently supports a one-size-fits-all approach. 
However, to provide greater clarity, particularly for small BIAS 
providers, and to further inform the Commission's case-by-case 
analysis, we offer the following guidance regarding legitimate network 
management purposes. We also note that, consistent with the 2010 and 
2015 reasonable network management exceptions, BIAS providers may 
request a declaratory ruling or an advisory opinion from the Commission 
before deploying a network management practice, but are not required to 
do so.
    563. As with the network management exception in the 2015 Open 
Internet Order, BIAS providers may implement network management 
practices that are primarily used for, and tailored to, ensuring 
network security and integrity, including by addressing traffic that is 
harmful to the network, such as traffic that constitutes a denial-of-
service attack on specific network infrastructure elements. Likewise, 
BIAS providers may also implement network management practices that are 
primarily used for, and tailored to, addressing traffic that is 
unwanted by end users. Further, network management practices that 
alleviate congestion without regard to the source, destination, 
content, application, or service are also more likely to be considered 
reasonable network management practices in the context of this 
exception. As in the no-throttling rule and the general conduct 
standard, we include classes of content, applications, services, or 
devices. In evaluating congestion management practices, a subset of 
network management practices, we will also consider whether the 
practice is triggered only during times of congestion and whether it is 
based on a user's demand during the period of congestion. In addition, 
we maintain the guidance that a network management practice is more 
likely to be found reasonable if it is transparent and allows the end 
user to control it. Finally, we also reaffirm that reasonable network 
management practices should be as application-agnostic as possible.

D. Oversight of BIAS Providers' Arrangements for Internet Traffic 
Exchange

    564. Because we conclude that BIAS necessarily includes the 
exchange of internet traffic by an edge provider or an intermediary 
with the BIAS provider's network, disputes involving a BIAS provider 
regarding internet traffic exchange that interfere with the delivery of 
a BIAS end user's traffic are subject to our authority under Title II 
of the Act. The Commission has previously found, and the current record 
reflects, that anticompetitive and discriminatory practices in this 
portion of BIAS could have a deleterious effect on the open internet. 
The record evidence thus undermines USTelecom's assertion that because 
``transit providers and their customers almost always rely on multiple 
redundant paths for the exchange of traffic to customers on any ISP's 
network, and edge providers dynamically shift between transit providers 
in real time to avoid congestion,'' a BIAS provider ``thus could not 
execute a `degradation by congestion' strategy without limiting 
capacity across all of its peering points for extended periods.'' When 
internet traffic exchange breaks down--regardless of the cause--it 
risks preventing consumers from reaching the services and applications 
of their choosing, disrupting the virtuous cycle, and potentially 
causing public safety or other harms. Further, consumers' ability to 
respond to unjust or unreasonable BIAS provider practices are limited 
by switching costs. We therefore retain targeted authority under 
sections 201, 202, and 208 of the Act (and related enforcement 
provisions) to protect against such practices, and will continue to 
monitor BIAS providers' internet traffic exchange arrangements to 
ensure that they are not harming or threatening to harm the open nature 
of the internet. This regulatory backstop is not a substitute for 
robust competition. The Commission's regulatory and enforcement 
oversight, including over common carriers, is complementary to vigorous 
antitrust enforcement. Thus, it will remain essential for the 
Commission, as well as the DOJ, to continue to carefully monitor, 
review, and where appropriate, take action against any anticompetitive 
mergers, acquisitions, agreements or conduct, including where BIAS is 
concerned. We conclude, consistent with the 2015 Open Internet Order, 
that case-by-case review under sections 201 and 202 is the appropriate 
vehicle for enforcement

[[Page 45522]]

``where disputes are primarily over commercial terms and that involve 
some very large corporations, including companies like transit 
providers and CDNs, that act on behalf of smaller edge providers.'' 
Thus, the Commission will be available to hear disputes raised under 
sections 201 and 202 on a case-by-case basis. In addition, Federal 
courts will also be able to adjudicate complaints brought under Title 
II. We also observe that section 706 provides the Commission with an 
additional, complementary source of authority to ensure that internet 
traffic exchange practices do not harm the open internet.
    565. We disagree with USTelecom's assertions that our oversight of 
BIAS providers' arrangements for internet traffic exchange would 
``result in irrationally asymmetric regulation of bilateral 
negotiations'' and ``would leave the ISP's counterparty . . . an 
unregulated entity immune from such complaints, giving it new 
opportunities for regulatory gamesmanship.'' While BIAS providers would 
be subject to the Commission's prohibitions against unjust and 
unreasonable practices, the other parties to such agreements are not 
without oversight; such parties would remain subject to the FTC's 
oversight of ``unfair and deceptive'' practices as well as the FTC's 
and DOJ's antitrust authority. Further, we observe that should a 
complaint arise regarding BIAS provider internet traffic exchange 
practices, practices by edge providers (and their intermediaries) would 
be considered as part of the Commission's evaluation as to whether BIAS 
provider practices were ``just and reasonable'' under the Act.
    566. We decline to apply any open internet rules to internet 
traffic exchange. We note that this exclusion also extends to 
interconnection with CDNs. Internet traffic exchange agreements have 
historically been and will continue to be commercially negotiated. 
Given the constantly evolving market for internet traffic exchange, we 
conclude that at this time it would be difficult to predict what new 
arrangements will arise to serve consumers' and edge providers' needs 
going forward, as usage patterns, content offerings, and capacity 
requirements continue to evolve. Consistent with the Commission's 
findings in 2015 and subsequent inquiries, we find that the best 
approach with the respect to arrangements for internet traffic exchange 
is to rely on the regulatory backstop of sections 201 and 202,which 
prohibit common carriers from engaging in unjust and unreasonable 
practices. Our ``light touch'' approach therefore does not directly 
regulate interconnection practices. We make clear, however, that BIAS 
providers may not engage in interconnection practices that ``circumvent 
the prohibitions contained in the open internet rules'' or that have 
the purpose or effect of evading our rules to protect internet 
openness.
    567. We conclude that it would be premature to adopt prescriptive 
rules to address any problems that have arisen or may arise, and we 
decline at this time to adopt a rule requiring BIAS providers to offer 
settlement[hyphen]free peering to edge providers and transit providers 
that agree to reasonably localize the exchanged traffic, or to 
otherwise prohibit fees associated with internet traffic exchange 
arrangements, as some commenters suggest. The record reflects competing 
narratives regarding the imposition of paid peering arrangements. For 
example, one research study claims that paid peering results in higher 
prices for consumers, reduces consumer surplus, and results in higher 
profits for broadband providers. In contrast, USTelecom asserts that 
``the providers of such double-sided platforms [like ISPs] routinely 
assess fees on both sides, and it is well understood that charges to 
one side of the platform (here, direct-interconnection fees) exert 
downward pressure on charges to the other side (here, resulting in 
lower consumer broadband bills).'' USTelecom further argues that 
``eliminating direct-interconnection fees would eliminate price signals 
that, today, give content-originating networks efficient incentives to 
reduce unnecessary costs in their transmission of internet traffic,'' 
explaining that ``the prospect of such fees currently gives streaming 
video providers incentives to implement efficient forms of digital 
compression that reduce traffic loads while still providing high video 
quality to end users'' and that ``[i]mposing a new obligation of 
settlement-free direct interconnection would undermine those 
efficiency-inducing price signals, generate wasteful over-expenditure 
of finite network resources, and thus impose on broadband providers 
avoidable costs that consumers would ultimately bear in the form of 
higher broadband bills.'' Lumen, in response, asserts that ``the fees 
large BIAS providers attempt to impose are indeed supracompetitive . . 
. and can exceed what Lumen charges for transit service,''--a highly 
competitive market--demonstrating ``conclusively'' that their charges 
are supracompetitive. And New America's Open Technology Institute 
asserts that ``[e]dge providers have plenty of price incentives to 
move, manage, and deliver traffic efficiently without the BIAS provider 
extracting a toll for access to their subscribers.'' We are cautious of 
imposing a one-size-fits-all rule on this dynamic sector of the 
broadband industry based on the record before us, which raises 
potential concerns about such arrangements but lacks detail regarding 
specific incidences of such actions. Instead, we will proceed on a 
case-by-case basis regarding assertions or claims that arrangements for 
internet traffic exchange, including fee-based arrangements, violate 
sections 201 or 202 of the Act, or are being used to circumvent or 
evade open internet protections. As we note above, the Commission has 
taken action to require settlement-free peering agreements where 
appropriate.

E. Enforcement of Open Internet Rules

    568. Effective and timely conflict resolution and clear guidance on 
permitted and prohibited practices under the rules we adopt in the 
Order are important to further our goal to secure and safeguard an open 
internet. As in the past, we expect that many disputes that will arise 
can and should be resolved by the parties without Commission 
involvement. We continue to encourage parties to resolve disputes 
through informal discussion and private negotiations whenever possible.
    569. At the same time, we are prepared to enforce our open internet 
rules as the need arises. To that end, we will rely on a multifaceted 
enforcement framework comprised of advisory opinions, enforcement 
advisories, Commission-initiated investigations, and informal and 
formal complaints. Some commenters endorse a multi-faceted enforcement 
framework. The advisory opinions and enforcement advisories should 
provide upfront clarity, guidance, and predictability with respect to 
the open internet rules, thereby giving providers an avenue to avoid 
formal complaint litigation, remediation, or fines after the fact. 
Commission-initiated investigations will also play a role in our 
enforcement framework. Investigations may stem from review of informal 
complaints, from which trends of behavior can be identified, or 
information otherwise brought to the Commission's attention. When the 
Commission determines a violation has occurred, we will pursue remedies 
and penalties. Lastly, the formal complaint processes will provide 
parties options to bring open internet rule violations to the 
Commission's attention and to resolve specific disputes. As explained 
infra, the

[[Page 45523]]

Enforcement Bureau's Market Disputes Resolution Division provides 
confidential mediation services, at no cost, to assist parties in 
settling or narrowing disputed issues. We find that, when necessary, 
the formal complaint process will provide a backstop framework that 
will effectively and timely address open internet disputes and provide 
guidance on practices that are permitted or prohibited under our rules.
1. Advisory Opinions and Enforcement Advisories
    570. Advisory Opinions. The Commission previously concluded in 2015 
that the use of advisory opinions would be in the public interest and 
had the potential to provide clarity, guidance, and predictability 
concerning the Commission's open internet rules. In 2017, the RIF Order 
ended the use of enforcement advisory opinions, asserting that they 
were no longer necessary due to the elimination of the conduct rules. 
In the Order, we reaffirm the conclusions of the 2015 Open Internet 
Order, and adopt an updated process for providers seeking an advisory 
opinion from Commission staff regarding the open internet rules to 
provide upfront clarity, guidance, and predictability. Updated process 
steps are not intended to substantively differ from those outlined in 
the 2015 Open Internet Order. We continue to believe an advisory 
opinion process will provide clarity and guidance to providers seeking 
to comply with our regulations. We believe the advisory opinion process 
we adopt in the Order will help, and not impede, innovation by 
providing published guidance that illustrates how we implement our laws 
and regulations.
    571. Under the process we adopt in the Order, any BIAS provider may 
request an advisory opinion regarding the permissibility of its 
proposed policies and practices affecting access to BIAS. As noted in 
our rules, requests for an advisory opinion may be filed via the 
Commission's website or with the Office of the Secretary and must be 
copied to the Chief of the Enforcement Bureau and the Chief of the 
Investigations and Hearings Division of the Enforcement Bureau. We 
hereby delegate to the Enforcement Bureau the authority to receive such 
requests and issue such advisory opinions, and we direct the 
Enforcement Bureau to coordinate closely with other relevant Bureaus 
and Offices regarding such advisory opinions. The Enforcement Bureau 
will have discretion to determine whether to issue an advisory opinion 
in response to a particular request or group of requests and will 
inform each requesting entity, in writing, whether the Bureau plans to 
issue an advisory opinion regarding the matter in question. The 
Enforcement Bureau shall decline to issue an advisory opinion if the 
relevant policy or practice is the subject of a pending government 
investigation or proceeding.
    572. BIAS providers may submit requests for advisory opinions 
regarding prospective policies and practices affecting broadband 
access. A request must pertain to a policy or practice that the 
requesting party intends to utilize, rather than a mere possible or 
hypothetical scenario. As a general matter, the Enforcement Bureau will 
prioritize requests involving substantial questions with no clear 
Commission precedent and/or subject matter involving significant public 
interest. Other Federal agencies have similar advisory opinion 
processes. For example, the Rules of Practice of the FTC provide that 
the FTC or its staff, in appropriate circumstances, may offer industry 
guidance in the form of an advisory opinion. The FTC specifies that it 
will consider requests for advisory opinions, where practicable, under 
the following circumstances: ``(1) The matter involves a substantial or 
novel question of fact or law and there is no clear Commission or court 
precedent; or (2) The subject matter of the request and consequent 
publication of Commission advice is of significant public interest.''
    573. When submitting requests, BIAS providers must include all 
material information such that Commission staff can make a fully 
informed determination on the matter. Requesting parties will also be 
required to certify that factual representations made to the 
Enforcement Bureau are truthful, accurate, and do not contain material 
omissions. The Enforcement Bureau will have discretion to request 
additional information from the requesting entity and from other 
parties that might have relevant information or be impacted by the 
request. These might include, for example, impacted consumers or state, 
local, or Tribal governments.
    574. Our advisory opinion process will affect BIAS providers and 
the Commission's enforcement actions as described below. First, the 
process is fully voluntary. No BIAS provider will be rewarded or 
penalized for seeking an advisory opinion, and the seeking (or not) of 
an advisory opinion will not itself influence any enforcement-related 
decision by the Commission. Second, in an advisory opinion, the 
Enforcement Bureau will issue a determination of whether or not the 
policy or practice detailed in the request complies with the open 
internet rules. We disagree with Smithwick & Belendiuk's assertion that 
that the Commission must provide the public an opportunity to comment 
on a BIAS provider's request for an advisory opinion, or eliminate the 
process entirely. As Smithwick & Belendiuk itself acknowledges, a BIAS 
provider may ``face a legitimate potential for competitive harm if its 
operational plan are made public at the advisory opinion stage,'' and 
further, the Commission does not routinely seek public input on its 
interpretation of its own rules.
    575. The Bureau will not respond to requests for opinions that 
relate to ongoing or prior conduct, and the Bureau may initiate an 
enforcement investigation to determine whether such conduct violates 
the open internet rules. Third, a requesting party may rely on an 
advisory opinion to the extent that its request fully and accurately 
describes all material facts and circumstances. Fourth, advisory 
opinions will be issued without prejudice to the Enforcement Bureau's 
or the Commission's ability to reconsider the questions involved, and 
rescind the opinion. We disagree with commenters who assert that 
advisory opinions are not helpful because they would only apply to the 
requesting party and the facts at hand and not other providers or 
because any guidance would be revocable and not binding. While advisory 
opinions will specifically engage with the facts provided by a 
requesting party, we believe published advisory opinions will inform 
other providers with similar questions, and that usefulness will still 
apply even if the Commission subsequently revises its guidance.
    576. The Enforcement Bureau will attempt to respond to requests for 
advisory opinions as efficiently as possible. We decline to establish 
firm deadlines, however, because we anticipate that the nature, 
complexity, and magnitude of requests may vary widely. Furthermore, it 
may take time for Commission staff to request any additional 
information needed to issue an opinion. Once issued, the Enforcement 
Bureau will make the advisory opinion available to the public. Entities 
concerned about privacy and sensitive market information may request 
confidential treatment of certain information, as provided under 
Commission rules. And to provide further guidance to industry and 
consumers, the Bureau will also release the initial request and any 
additional materials deemed necessary to contextualize the opinion.

[[Page 45524]]

    577. We continue to believe an advisory opinion process will 
provide clarity and guidance to providers seeking to comply with our 
regulations. While some commenters assert that seeking an advisory 
opinion would potentially harm the requesting party, the advisory 
opinion process we adopt in the Order does not contemplate the 
Enforcement Bureau taking enforcement action solely in response to a 
provider seeking an advisory opinion.
2. Complaint Processes
    578. Informal Complaints. As stated in the 2023 Open Internet NPRM, 
the Commission's informal complaint process under Sec.  1.41 of the 
rules ``remain[s] available to parties with respect'' to open internet 
rules. Commenters support continued use of the informal complaint 
process as an effective enforcement mechanism of our rules. For 
example, NDIA affirms the value of the informal complaint pathway in 
its ``accessibility to most consumers.'' The Commission previously 
found, and we continue to find, that Sec.  1.41 provides ``a simple and 
cost-effective option for calling attention to open internet rule 
violations.'' With reclassification, Sec. Sec.  1.711 through 1.717 
also apply to informal complaints arising under Title II of the Act. 
Consumers may submit informal complaints online, and no filing fee is 
required. Informal complaints are filed through the Commission's user-
friendly complaint interface, the Consumer Inquiries and Complaint 
Center Help Center. We note that the Commission's Consumer Complaint 
Center is responsive on mobile devices and that the Commission's call 
center is staffed by both English- and Spanish-speaking agents who can 
file complaints on behalf of consumers. Individuals who use videophones 
and are fluent in American Sign Language (ASL) may call the 
Commission's ASL Consumer Support line for assistance in ASL with 
filing informal complaints or obtaining consumer information. Those who 
wish to file an informal complaint may simply visit the Consumer 
Inquiries and Complaint Center portal on the Commission's website and 
click the internet icon to access relevant information and the online 
complaint intake system. Consistent with our current process and 
procedures, consumers may also file informal complaints by fax or 
postal mail. The informal consumer complaint process facilitates a 
conversation between the consumer and the provider to address disputed 
issues. It does not involve arbitration, mediation, or investigation. 
These complaints will be reviewed and may be served on the consumer's 
BIAS provider for investigation and response to the consumer within 30 
days. WISPA requests a 30-day negotiating period before filing an 
informal complaint. We decline WISPA's request, but we note that the 
informal complaint process is designed to allow parties to reach an 
informal, negotiated resolution before proceeding to a more formal 
process. Although individual informal complaints will not typically 
result in written Commission Orders, the Enforcement Bureau will 
examine trends or patterns in complaints to identify potential targets 
for investigation and enforcement action. The availability of complaint 
procedures does not bar the Commission from initiating separate and 
independent enforcement proceedings for potential violations. The 
Commission reviews informal complaints and, when applicable, will 
initiate investigations internally in furtherance of our enforcement 
efforts. These include Commission-initiated inquiries under section 403 
of the Act, which may lead to the issuance of forfeitures under section 
503(b) of the Act.
    579. Formal Complaints. The RIF Order eliminated the open internet 
complaint rules adopted in the 2010 Open Internet Order and preserved 
in the 2015 Open Internet Order. With our action in the Order to 
reclassify BIAS as a Title II telecommunications service, absent 
adoption of a different approach, the section 208 formal complaint 
rules will apply. In the 2023 Open Internet NPRM, we sought comment on 
whether it would be beneficial to re-establish a formal complaint 
process for complaints arising under our open internet rules and 
whether our section 208 formal complaint process is sufficient for this 
purpose. We agree with commenters that the formal complaint process 
should continue to be part of the enforcement framework for the open 
internet rules. Several commenters state that formal complaint 
procedures are necessary to ensure equal access to BIAS and support 
having a structured formal complaint process. In its comment, the U.S. 
Chamber of Commerce objects to ``adopt[ing] a formal complaint 
mechanism under section 208 of the Communications Act for alleged 
instances of digital discrimination.'' The instant Order, however, only 
concerns open internet rules and takes no position on the applicability 
of section 202 to the digital discrimination rules. We further conclude 
that the existing formal complaint rules codified at Sec. Sec.  1.720 
through 1.740 of our rules should apply to formal open internet 
complaints.
    580. The Commission updated the existing section 208 rules in 2018, 
and they govern all formal complaint proceedings delegated to the 
Enforcement Bureau. These comprehensive rules are largely the same as 
the prior open-internet-specific formal complaint rules, providing for 
a complaint, answer, and reply, as well as discovery and briefing, as 
appropriate. They also establish deadlines for the resolution of 
complaints. We reject WISPA's request that the Commission be required 
to render a decision on any complaint within 60 days from the date the 
BIAS provider files its response to the Commission. The formal 
complaint rules are designed to resolve complaints on a written record 
and give defendants sufficient opportunity to respond to the 
allegations against them so as to afford due process. The rules 
contemplate the exchange of information and other efforts to narrow the 
issues in dispute and streamline the adjudicative process. A 60-day 
deadline would not provide adequate time for the development of a 
complete record in a complex case. We also reject WISPA's request for a 
shortened, one-year statute of limitations from the time of an alleged 
open internet rule violation. Section 415 of the Act generally provides 
that complaints be filed within two years from the time the cause of 
action accrues, and WISPA provides no basis justifying a departure from 
this statutory requirement. For these reasons we find it unnecessary, 
as WISPA requests, for the Commission to seek additional comment on 
streamlined enforcement procedures and timeframes for BIAS providers 
with 250,000 or fewer subscribers. We find that the size of the 
defendant BIAS provider (or the number of subscribers it has) does not 
determine the complexity or scope of the violations alleged, nor does 
it form the basis for developing a separate set of procedures or 
deadlines. Furthermore, we find it unnecessary to examine whether to 
establish a specific forfeiture amount for smaller providers under part 
8 of the Commission's rules. The Commission's rules already provide for 
discretion when assessing penalties, so there is no need to limit that 
discretion solely for small BIAS providers. Moreover, we believe that 
using the section 208 formal complaint rules will avoid the potential 
for two different complaint processes if a complaint includes both open 
internet violations and other Title II violations.
    581. ACA Connects expresses concern about the burden and cost 
associated with defending potential complaint

[[Page 45525]]

proceedings. We find such proceedings are likely to be rare and 
unlikely to be particularly burdensome. To reiterate, we view formal 
complaint litigation as a last resort. The section 208 formal complaint 
rules require a complainant to certify that it has made a good faith 
effort to settle the dispute. Additionally, either party may seek 
voluntary mediation at the Commission--before a complaint is filed or 
while the complaint is pending--in an effort to avoid litigation. 
Mediation may be requested by a letter or by filing an informal 
complaint with the Enforcement Bureau's Market Disputes Resolution 
Division. Mediation often obviates the need for litigation or, barring 
settlement of the entire dispute, may narrow issues for adjudication.
F. Legal Authority
    582. We rely on multiple sources of independent, complementary 
legal authority for the open internet rules we adopt in the Order, 
including Titles II and III of the Act and section 706 of the 1996 Act. 
These are the same sources of authority that the Commission relied upon 
when it adopted rules in the 2015 Open Internet Order, which were 
upheld in full by the D.C. Circuit. These sources of authority work to 
safeguard and secure internet openness to ensure that the internet 
continues to grow as a platform for competition, free expression, and 
innovation; to be a driver of economic growth; and to be an engine of 
the virtuous cycle of broadband deployment, innovation, and consumer 
demand.
    583. In the Order, we find that BIAS is a telecommunications 
service subject to Title II, with forbearance where appropriate under 
section 10 of the Act, allowing the Commission to exercise its 
authority under sections 201 and 202 of the Act to ensure that BIAS 
providers do not engage in unjust and unreasonable practices or 
preferences. As described below, under section 706, the Commission has 
the authority to adopt these open internet rules to encourage and 
accelerate the deployment of broadband to all Americans. The rules are 
also supported by Title III of the Act, under which the Commission has 
broad spectrum management authority to protect the public interest 
through spectrum licensing and regulations. Each of these sources of 
authority provides an alternative ground to independently support our 
open internet rules. With respect to our revised transparency rule, we 
rely on the same sources of authority along with section 257 of the Act 
(and associated authority now in section 13 of the Act), consistent 
with the relevant reasoning of the 2010 Open Internet Order and the RIF 
Order. Below, we discuss the basis and scope of each of these sources 
of authority, provide an overview of prior precedents which justifies 
such use, and then explain their application to the open internet rules 
we adopt in the Order.
1. Title II of the Act With Forbearance
    584. As in the 2015 Open Internet Order, we find that the open 
internet rules we adopt in the Order are also supported by our legal 
authority under Title II to regulate telecommunications services. We 
rely on sections 201, 202, and 208 of the Act, along with the related 
enforcement authorities of sections 206, 207, 209, 216, and 217, as 
additional legal authority for the open internet rules we adopt in the 
Order.
    585. Section 201(a) places a duty on common carriers to furnish 
communications services subject to Title II ``upon reasonable request'' 
and ``establish physical connections with other carriers'' where the 
Commission finds it to be in the public interest.'' Section 201(b) 
provides that ``[a]ll charges, practices, classifications, and 
regulations for and in connection with such communication service, 
shall be just and reasonable, and any such charge, practice, 
classification, or regulation that is unjust or unreasonable is 
declared to be unlawful.'' Section 201(b) also gives the Commission the 
authority to ``prescribe such rules and regulations as may be necessary 
in the public interest to carry out the provisions of this chapter.'' 
Section 202(a) makes it unlawful for any common carrier to make any 
unjust or unreasonable discrimination in charges, practices, 
classifications, regulations, facilities, or services for or in 
connection with like communication service, directly or indirectly, by 
any means or device, or to make or give any undue or unreasonable 
preference or advantage to any particular person, class of persons, or 
locality, or to subject any particular person, class of persons, or 
locality to any undue or unreasonable prejudice or disadvantage.
    586. Thus, the unjust and unreasonable standards in sections 201 
and 202 afford the Commission significant discretion to distinguish 
acceptable behavior from behavior that violates the Act. Indeed, the 
very terms ``unjust'' and ``unreasonable'' are broad, inviting the 
Commission to undertake the kind of line-drawing that is necessary to 
differentiate just and reasonable behavior on the one hand from unjust 
and unreasonable behavior on the other. As the D.C. Circuit has stated, 
for example, ``the generality of these terms . . . opens a rather large 
area for the free play of agency discretion, limited of course by the 
familiar `arbitrary' and `capricious' standard in the Administrative 
Procedure Act.'' Stated differently, because both sections ``set out 
broad standards of conduct,'' it is up to the ``Commission [to] give[ ] 
the standards meaning by defining practices that run afoul of carriers' 
obligation, either by rulemaking or by case-by-case adjudication.'' 
Acting within this discretion, the Commission has exercised its 
authority under section 201(b), through both adjudication and 
rulemaking, to ban unjust and unreasonable carrier practices as 
unlawful under the Act. The Commission need not proceed through 
adjudication in announcing a broad ban on a particular practice. 
Indeed, the text of section 201(b) itself gives the Commission 
authority to ``prescribe such rules and regulations as may be necessary 
in the public interest to carry out the provisions of this chapter.'' 
Although the particular circumstances have varied, in reviewing these 
precedents, we find that the Commission generally takes this step where 
necessary to protect competition and consumers against carrier 
practices for which there was either no cognizable justification for 
the action or where the public interest in banning the practice 
outweighed any countervailing policy concerns.
    587. Our rulemaking actions interpret and apply the statutory 
authority at issue here, thereby enabling the Commission to address the 
sorts of core communications policy issues that the agency has dealt 
with since the enactment of the Communications Act. This is illustrated 
by the many historical precedents for the regulation of carriers 
consistent with the conduct rules we adopt.
    588. Prohibitions on Blocking and Throttling. The conduct rules we 
adopt in the Order are consistent with longstanding Commission 
precedent under the Act, and in some respects also historical common 
carriage requirements more generally. Our rules prohibiting blocking or 
throttling of traffic except for purposes of reasonable network 
management or at the desire of end users aligns with policies the 
Commission long has applied to carriers under the Communications Act. 
These rules also accord with longstanding requirements imposed on 
common carriers of various sorts to defer to their customers regarding 
the content being carried and to ensure that content gets to its 
destination in a timely and reliable manner.

[[Page 45526]]

    589. Restriction on paid prioritization. Our rule banning paid 
prioritization also reflects the Commission's historical recognition 
that just and reasonable rates and practices can require regulating 
carriers' relationships with other communications suppliers. The 
Commission historically has regulated those relationships as needed, 
including to restrict carriers' ability to impose charges on providers 
delivering them communications traffic. We recognize that in addition 
to benefitting BIAS customers, our justification for the ban on paid 
prioritization rests in part on the identified harms to edge provider 
operations and innovation--but that, too, is consistent with how the 
Commission has exercised its authority historically. For example, the 
Supreme Court has rejected the view that section 201(b) limits the 
Commission to addressing practices exclusively when they harm 
customers, rather than also encompassing harms to communications 
service suppliers, basing its rationale in part on historical 
regulation under the Interstate Commerce Act. Further, a policy goal of 
the historical Computer Inquiries regime was to guard against the risk 
of carriers harming competitive providers of enhanced services.
    590. General Conduct Rule. Our general conduct rule, by which we 
evaluate conduct not covered by the bright-line rules, is consistent 
with the Commission's historical exercise of authority under the Act. 
Since its original enactment in 1934, the Communications Act has 
prohibited unjust, unreasonable, and unjustly or unreasonably 
discriminatory, rates and practices by carriers, and the Commission has 
regularly judged carriers' conduct against those standards on a case-
by-case basis. The origins of common carrier duties under common law, 
and then under the Interstate Commerce Act, likewise commonly were 
subject to case-by-case adjudication.
    591. The specific considerations that guide the application of the 
general conduct rule also reflect the types of factors the Commission 
historically has weighed in evaluating the justness and reasonableness 
of carrier conduct.
     For example, section 201(b) of the Act has long been 
understood to allow for carrier practices that enable end users to 
control their use of the service to which they have subscribed as just 
and reasonable, absent a countervailing adverse public impact.
     Consumer protection, such as protection against deceptive 
or misleading practices, also has been a part of the Commission's 
implementation of section 201(b) of the Act.
     The Commission historically has implemented the Act to 
guard against conduct that would have harmful competitive effects, as 
well.
     The Commission not only has considered effects on 
innovation and investment in its implementation of longstanding 
provisions of the Act, but since the enactment of the 1996 Act also has 
relied on the mandate to advance broadband deployment in section 706 of 
that statute.
     The Commission also has treated compliance with industry 
standards or best practices as relevant--though not dispositive--to its 
evaluation of the justness and reasonableness of carrier practices.
    Thus, the consideration of such factors through a case-by-case 
reasonableness evaluation is fully consistent with longstanding 
historical practice.
    592. The record also provides broad support for relying on 
authority in sections 201 and 202 of the Act. Some commenters oppose 
relying on sections 201 and 202, because these sections may be unduly 
burdensome, particularly on smaller providers. In such cases, 
commenters urge the Commission to forbear from sections 201, 202, and 
208 for smaller BIAS providers, or alternatively, initiate a new 
proceeding to define the limits of obligations for small BIAS 
providers. Other commenters argue that the Commission should focus on 
Title II authority rather than section 706. These commenters contend 
that the Commission should focus on Title II authority rather than 
section 706. For the reasons set forth above, we find the open internet 
rules we adopt in the Order are supported by our legal authority under 
Title II.
    593. As proposed in the 2023 Open Internet NPRM, and consistent 
with the 2010 Open Internet Order and the RIF Order, and as affirmed by 
the D.C. Circuit in Mozilla, we rely on section 257 of the Act (now in 
conjunction with section 13 of the Act) as additional legal authority 
for the transparency requirements we retain. Section 257(a) directs the 
Commission to ``identify[ ] and eliminate[ ] . . . market entry 
barriers for entrepreneurs and other small businesses in the provision 
and ownership of telecommunications services and information services, 
or in the provision of parts or services to providers of 
telecommunications services and information services.'' The RAY BAUM'S 
Act of 2018 eliminated section 257(c) of the Act, and instead included 
language in new section 13 of the Act, 47 U.S.C. 163, requiring similar 
review under that provision. Thus, to be clear, section 257 previously 
included subsection (c), which directed the Commission to submit a 
triennial report to Congress on the market entry barriers for 
entrepreneurs and other small businesses. The RAY BAUM's Act now 
requires the Commission to submit a biennial report that is similar to 
the report previously required under section 257(c). In carrying out 
section 257(a), the Commission ``shall seek to promote the policies and 
purposes of this chapter favoring diversity of media voices, vigorous 
economic competition, technological advancement, and promotion of the 
public interest, convenience, and necessity.''
    594. We continue to find that section 13(d)(3) is properly 
understood as not only imposing a current obligation to ``consider 
market barriers for entrepreneurs and other small businesses in the 
communications marketplace in accordance with the national policy under 
section 257(b),'' but also imposing an ongoing obligation to do so. In 
this regard, section 13(a) directs the Commission to submit a report to 
Congress, ``[i]n the last quarter of every even-numbered year, on the 
state of the communications marketplace.'' The report must assess the 
state of competition in the communications marketplace, including 
competition to deliver voice, video, audio, and data services among 
providers of telecommunications, providers of commercial mobile service 
(as defined in section 332), multichannel video programming 
distributors (as defined in section 522), broadcast stations, providers 
of satellite communications, internet service providers, and other 
providers of communications services. The report must ``assess whether 
laws, regulations, regulatory practices (whether those of the Federal 
Government, States, political subdivisions of States, Indian tribes or 
tribal organizations (as such terms are defined in section 5304 of 
title 25), or foreign governments), or demonstrated marketplace 
practices pose a barrier to competitive entry into the communications 
marketplace or to the competitive expansion of existing providers of 
communications services.'' Section 163(d)(3) further directs that, 
``[i]n assessing the state of competition . . . and regulatory barriers 
. . ., the Commission shall consider market entry barriers for 
entrepreneurs and other small businesses in the communications 
marketplace in accordance with the national policy under section 257(b) 
of this title.''

[[Page 45527]]

2. Section 706 of the 1996 Act
    595. We adopt our proposal to return to the Commission's prior 
judicially affirmed interpretation of section 706 of the 1996 Act as 
granting the Commission regulatory authority. We do so in light of the 
considerations that persuaded the Commission to adopt such 
interpretations in the past, and that persuaded courts to affirm those 
interpretations. Consistent with the prior approach, we rely on section 
706(a) as part of our authority for the adoption of open internet 
rules. We also rely on section 706(b) to the extent that the Commission 
concludes under section 706(a) that advanced telecommunications 
capability is not being deployed to all Americans in a reasonably 
timely fashion. The Commission's most recent section 706 report issued 
last month concluded that advanced telecommunications capability was 
not being deployed to all Americans in a reasonable and timely fashion. 
The record reflects support for returning to the Commission's prior 
interpretation of section 706(a) and (b) as grants of regulatory 
authority from a range of commenters, including State and local groups, 
public interest groups, think tanks, academia, and others. These 
commenters generally argue that interpreting section 706 as a grant of 
regulatory authority provides a better reading of the statute than the 
interpretation adopted in the RIF Order, is supported by judicial and 
Commission precedent, is supported by legislative history, and will 
survive judicial scrutiny even with limited deference. The record also 
reflects commenters who oppose returning to interpreting section 706 as 
a grant of regulatory authority, for reasons such as the provision 
should be viewed as exhortative rather than as a directive, the 
provision is not supported by statutory interpretation, and the 
provision is not supported by clear congressional intent. For the 
reasons discussed by the Commission in the 2010 Open Internet Order and 
the 2015 Open Internet Order, the D.C. Circuit in Verizon and USTA, the 
Tenth Circuit in In re FCC, and in the Order, we disagree. We also 
disagree with other commenters' claims that the Commission could adopt 
rules using section 706 and Title I authority.
    596. The RIF Order principally grounded its rationale for changing 
the interpretation of section 706 on its view that section 706 was 
better interpreted as hortatory. As explained below, upon further 
analysis, we conclude that interpreting section 706(a) and (b) as 
grants of regulatory authority represents the better reading of the 
statute and likewise provides a basis for us to change our 
interpretation.
    597. For one, we have ample support for relying on specific 
rationales for interpreting section 706(a) and (b) of the 1996 Act as 
grants of regulatory authority. In Comcast, the D.C. Circuit identified 
section 706(a) as a provision that ``at least arguably . . . 
delegate[s] regulatory authority to the Commission,'' and in fact 
``contain[s] a direct mandate--the Commission `shall encourage.' '' In 
the 2010 Open Internet Order, the Commission explained why section 
706(a) and (b) each represent a grant of regulatory authority to the 
Commission after considering the statutory text, regulatory and 
judicial precedent, and legislative history, and rejecting objections 
to that interpretation. In particular, the Commission explained that 
Congress, in directing the Commission to ``encourage the deployment on 
a reasonable and timely basis of advanced telecommunications capability 
to all Americans . . . by utilizing . . . price cap regulation, 
regulatory forbearance, measures that promote competition in the local 
telecommunications market, or other regulating methods that remove 
barriers to infrastructure investment,'' necessarily vested the 
Commission with the statutory authority to carry out those acts. 
Indeed, the relevant Senate Report explained that the provisions of 
Section 706 are ``intended to ensure that one of the primary objectives 
of the [1996 Act]--to accelerate deployment of advanced 
telecommunications capability--is achieved,'' and stressed that these 
provisions are ``a necessary fail-safe'' to guarantee that Congress's 
objective is reached. As the Commission explained, it would be odd 
indeed to characterize Section 706(a) as a ``fail-safe'' that 
``ensures'' the Commission's ability to promote advanced services if it 
conferred no actual authority. As with the 2010 Open Internet Order, 
our reading, Section 706(a) authorizes the Commission to address 
practices, such as blocking VoIP communications, degrading or raising 
the cost of online video, or denying end users material information 
about their broadband service, that have the potential to stifle 
overall investment in internet infrastructure and limit competition in 
telecommunications markets.
    598. Consistent with what the Commission went on to explain, 
section 706(a) accordingly provides the Commission with a specific 
delegation of legislative authority to promote the deployment of 
advanced services, including by means of the open internet rules 
adopted in the 2010 Open Internet Order. As the Commission explained in 
2010 Open Internet Order, our understanding of section 706(a) is also 
harmonious with other statutory provisions that confer a broad mandate 
on the Commission. For example, section 706(a)'s directive to 
``encourage the deployment [of advanced telecommunications capability] 
on a reasonable and timely basis'' using the methods specified in the 
statute is no broader than other provisions of the Commission's 
authorizing statutes that command the agency to ensure ``just'' and 
``reasonable'' rates and practices, or to regulate services in the 
``public interest.'' Our section 706(a) authority is also generally 
consistent with--though narrower than--the understanding of ancillary 
jurisdiction under which this Commission operated for decades before 
the Comcast decision. The similarities between the two in fact explain 
why the Commission had not, before the 2010 Open Internet Order, had 
occasion to describe section 706(a) in this way. That is because in the 
particular proceedings prior to Comcast, providing such understanding 
of section 706(a) that we articulate in the 2010 Open Internet Order 
would not meaningfully have increased the authority that we understood 
the Commission already possessed.
    599. In addition, in the 2015 Open Internet Order, the Commission 
built on the foundation of its explanations in the 2010 Open Internet 
Order, rejecting various objections to the interpretation of section 
706(a) and (b) as grants of regulatory authority and elaborating on the 
Commission's authority to adopt rules implementing that provision, and 
to enforce those rules.
    600. The Commission concluded in the 2015 Open Internet Order and 
2010 Open Internet Order that open internet rules were a reasonable way 
to implement Commission authority under section 706(a) and (b), and the 
nexus between open internet rules and the directives in section 706(a) 
and (b) was affirmed by the D.C. Circuit in Verizon. For those same 
reasons, we find that the open internet rules we adopt here are a 
reasonable exercise of section 706(a) authority. As the Commission 
recently concluded that advanced telecommunications capability is not 
being deployed to all Americans in a reasonable and timely fashion 
under section 706(b), the open internet rules we adopt here are a 
reasonable exercise of authority under that provision as well.
    601. To be clear, we interpret section 706(a) and (b) as 
independent, complementary sources of affirmative Commission authority 
for the rules

[[Page 45528]]

adopted in the Order. Our interpretation of section 706(a) as a grant 
of express authority is in no way dependent upon our findings in the 
section 706(b) inquiry. Thus, even if the Commission's inquiry were to 
have resulted in a positive conclusion such that our section 706(b) 
authority were not triggered, this would not eliminate the Commission's 
authority to take actions to encourage broadband deployment under 
section 706(a). And Commission actions adopted pursuant to a negative 
section 706(b) determination would not simply be swept away by a future 
positive section 706(b) finding, and subsequently render those actions 
unnecessary or unauthorized without any further Commission process. 
Throwing away such measures because they are working would be like 
``throwing away your umbrella in a rainstorm because you are not 
getting wet.'' Even if that were not the case, independent section 
706(a) authority would remain. We mention, however, two legal 
requirements that appear relevant. First, section 408 of the Act 
mandates that ``all'' Commission orders (other than orders for the 
payment of money) ``shall continue in force for the period of time 
specified in the order or until the Commission or a court of competent 
jurisdiction issues a superseding order.'' Second, the Commission has a 
``continuing obligation to practice reasoned decisionmaking'' that 
includes revisiting prior decisions to the extent warranted. We are 
aware of no reason why these requirements would not apply in this 
context.
    602. The Commission takes such measures precisely to achieve 
section 706(b)'s goal of accelerating deployment.
    603. Our return to an interpretation of section 706 of the 1996 Act 
as granting the Commission regulatory authority and, in turn, as a 
basis for open internet rules is also propelled by the realization that 
BIAS has become even more essential to consumers for work, health, 
education, community, and everyday life. While internet access has long 
been important to daily life, the COVID-19 pandemic and the subsequent 
rapid shift of work, education, and health care online has demonstrated 
how essential BIAS connections are for consumers' participation in our 
society and economy. In light of this reality, we believe that 
returning to the Commission's prior interpretation of section 706 is 
necessary and timely given the critical importance of ensuring the 
Commission's authority to fulfill policy objectives and 
responsibilities to protect this vital service.
    604. We find that the Commission has the legal authority to return 
to the prior, judicially affirmed, pre-RIF Order interpretations of 
section 706(a) and (b) of the 1996 Act. The APA's requirement of 
reasoned decision-making ordinarily demands that an agency acknowledge 
and explain the reasons for a changed interpretation. But so long as an 
agency ``adequately explains the reasons for a reversal of policy,'' 
its new interpretation of a statute cannot be rejected simply because 
it is new. In Fox, the Supreme Court emphasized that, although an 
agency must acknowledge that it is changing course when it adopts a new 
construction of an ambiguous statutory provision, ``it need not 
demonstrate to a court's satisfaction that the reasons for the new 
policy are better than the reasons for the old one . . . .'' Rather, it 
is sufficient that ``the new policy is permissible under the statute, 
that there are good reasons for it, and that the agency believes it to 
be better, which the conscious change of course adequately indicates.'' 
We have so done here.
    605. We are unpersuaded by arguments in the RIF Order that section 
706(a) and (b) of the 1996 Act are better interpreted as hortatory, and 
not as grants of regulatory authority. For the reasons set forth below, 
we find there are deficiencies in the RIF Order's analysis that lead us 
to conclude that the RIF Order's reasoning, which has already been 
rejected by a court, is misguided and misplaced, and once again should 
be rejected. We therefore return to the Commission's prior judicially 
affirmed interpretation of section 706(a) and (b) of the 1996 Act as 
grants of regulatory authority and conclude that it is a better reading 
of the statute.
    606. First, according to the RIF Order's reasoning, the language in 
section 706(a) and (b) should be viewed as statutory surplusage that 
neither grants nor restrains Commission authority, but merely expresses 
the sense of Congress that advanced telecommunications are important. 
The D.C. Circuit has already twice affirmatively rejected this line of 
reasoning. In Verizon, the court affirmed as reasonable the 
Commission's interpretation that section 706(a) and (b) are grants of 
regulatory authority. The court held that section 706(a) ``vest[s] the 
Commission with actual authority to utilize the regulatory methods set 
forth in the statute to ``encourage the development of advanced 
telecommunications capability.'' This authority, Congress explained, is 
a ``fail safe'' to enable the Commission to achieve the goal of 
permitting all Americans to send and receive information in all forms--
voice, data, graphics, and video--over a high-speed, switched, 
interactive broadband, transmission capability.'' And section 706(b) 
imposes an affirmative duty on the Commission ``to conduct a regular 
inquiry `concerning the availability of advanced telecommunications 
capability.' '' And in the event that it determines that such 
capability is not ``being deployed to all Americans in a reasonable and 
timely fashion,'' the statute compels the Commission to ``take 
immediate action to accelerate deployment of such capability by 
removing barriers to infrastructure investment and by promoting 
competition in the telecommunications market.'' In USTA, the court 
likewise affirmed as reasonable the Commission's interpretations that 
section 706(a) and (b) are grants of regulatory authority. Moreover, 
although the Tenth Circuit failed to recognize that the Commission had, 
in fact, interpreted section 706(a) as a grant of regulatory authority 
in the 2010 Open Internet Order, it affirmed the Commission's reliance 
on section 706(b) as a grant of regulatory authority.
    607. Second, the RIF Order was too quick to dismiss the importance 
of the term ``shall'' in section 706(a) (``shall encourage'') and (b) 
(``shall take immediate action''), a term which describes a 
particularly potent word in statutory construction that ``usually 
connotes a requirement,'' and serves as a legislative mandate for 
regulation. Although the RIF Order recognized that the term ``shall'' 
generally indicates a command that admits of no discretion, it gave 
short shrift to the importance of its use in these statutory 
provisions, and instead interpreted the provisions as exhortative. The 
RIF Order reasoned that the Commission has other authority in the 
Communications Act under which it can exercise the mandates in section 
706(a) and (b), and thus there is no need to interpret these provisions 
as directives, in spite of the significant contrary evidence. But the 
D.C. Circuit explained in Verizon that section 706 ``does not limit the 
Commission to using other regulatory authority already at its disposal, 
but instead grants it the power necessary to fulfill the statute's 
mandate.'' We believe that acceptance of the RIF Order's reasoning 
would contravene the statute's clear language and structure and nullify 
textually applicable provisions. Indeed, if such faulty reasoning were 
allowed to stand, the term ``shall'' could be nullified in any other 
textually applicable provision where there may be other sources of

[[Page 45529]]

authority under the Act, an outcome we reject.
    608. Third, we also are unpersuaded by the RIF Order's argument 
that if section 706(a) and (b) were interpreted as grants of regulatory 
authority, it would enable the internet and information services to be 
heavily regulated in a manner inconsistent with the policy goals 
reflected in the Act. Although the RIF Order acknowledged that the 
Commission's prior interpretation of section 706 was, by its own terms, 
constrained in order to be consistent with the Act, it claimed that 
such constraints did not adequately address its statutory concerns. In 
the view of the RIF Order, seemingly the only outcomes of interpreting 
section 706 as granting regulatory authority would be extreme results 
where those constraints had little meaning and left the Commission with 
essentially unbounded authority or were such severe limitations as to 
render section 706 of little possible use. But as prior Commission and 
judicial precedents explain, there are several limitations to section 
706(a) authority, which makes these views unfounded. In Verizon, the 
D.C. Circuit agreed with the Commission that while authority under 
section 706 may be broad, it is not unbounded. Specifically, authority 
under section 706(a) must fall within the scope of the Commission's 
subject-matter jurisdiction over ``interstate and foreign commerce in 
communications by wire and radio.'' Additionally, the Commission's 
actions under section 706(a) must be designed to ``encourage the 
deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans.'' Moreover, the court 
in Verizon firmly concluded that the Commission's 2010 Open Internet 
Order regulations fell within the scope of section 706. It explained 
that the rules ``not only apply directly to broadband providers, the 
precise entities to which section 706 authority to encourage broadband 
deployment presumably extends, but also seek to promote the very goal 
that Congress explicitly sought to promote.'' Further, the court 
credited ``the Commission's prediction that the [2010] Open Internet 
Order regulations will encourage broadband deployment.'' The same is 
true of the open internet rules we adopt in the Order. Our regulations 
again only apply to last-mile providers of BIAS--a service that is not 
only within our subject-matter jurisdiction, but also expressly within 
the terms of section 706. And, again, each of our rules is designed to 
remove barriers in order to achieve the express purposes of section 
706. We also find that our rules will provide additional benefits by 
promoting competition in telecommunications markets, such as, for 
example, by fostering competitive provision of VoIP and video services 
and informing consumers' choices.
    609. Fourth, we are also unpersuaded by the RIF Order's concerns 
about our ability to enforce violations of requirements adopted under 
section 706(a) and (b) of the 1996 Act. The rules we adopt in the Order 
implement the provisions of the Communications Act and are thus are 
covered by our Titles IV and V authorities to investigate and enforce 
violations of these rules. With specific respect to section 706, in 
Verizon, the D.C. Circuit suggested that section 706 was part of the 
Communications Act of 1934. Under such a reading, rules adopted 
pursuant to section 706 fall within our Title IV and V authorities. The 
1996 Act incorporated the relevant statutory definitions in the Act, 
which the Commission has broad authority to implement. The 1996 Act 
also required the Commission to adopt rules or orders that turned on 
the interpretation of those statutory definitions.
    610. But even if this were not the case, we believe it reasonable 
to interpret section 706 itself as a grant of authority to investigate 
and enforce our rules. Moreover, to the extent that section 706 was not 
viewed as part of the Communications Act, we have authority under 
section 4(i) of the Communications Act to adopt rules implementing 
section 706. Thus, even then the Commission's rules, insofar as they 
are based on our substantive jurisdiction under section 706, 
nonetheless would be issued under the Communications Act. ``[B]y its 
terms our section 4(i) rulemaking authority is not limited just to the 
adoption of rules pursuant to substantive jurisdiction under the 
Communications Act, and the Verizon court cited as reasonable the 
Commission's view that Congress, in placing upon the Commission the 
obligation to carry out the purposes of section 706, `necessarily 
invested the Commission with the statutory authority to carry out those 
acts.' '' Under such a reading, rules adopted pursuant to section 706 
fall within our Titles IV and V authorities. The Commission would also 
have all of its standard rulemaking authority under sections 4(i), 
201(b), and 303(r). Our enforcement authority was not explicitly 
discussed in either the 2010 Open Internet Order or Verizon. The court 
did cite as reasonable, however, the Commission's view that Congress, 
in placing upon the Commission the obligation to carry out the purposes 
of section 706, ``necessarily invested the Commission with the 
statutory authority to carry out those acts.'' We believe it likewise 
reasonable to conclude that, having provided the Commission with 
affirmative legal authority to take regulatory measures to further 
section 706's goals, Congress invested the Commission with the 
authority to enforce those measures as needed to ensure those goals are 
achieved. Courts have long recognized the Commission's authority to 
interpret and implement the Communications Act of 1934. Both the 2015 
Open Internet Order and the RIF Order recognized this authority.
3. Title III of the Act for Mobile Providers
    611. As in the 2015 Open Internet Order, we find that the open 
internet rules we adopt in the Order are further supported in the case 
of mobile BIAS by our broad legal authority under Title III of the Act 
to protect the public interest through spectrum licensing and 
regulations, including sections 303 and 316 of the Act.
    612. Section 303(b) directs the Commission, consistent with the 
public interest, to ``[p]rescribe the nature of the service to be 
rendered by each class of licensed stations and each station within any 
class.'' The open internet rules we adopt in the Order prescribe the 
nature of the service to be rendered by licensed entities providing 
mobile BIAS. The rules we adopt in the Order specify the form this 
service must take for those who seek licenses to offer it. In providing 
such licensed service, BIAS providers must adhere to the rules we adopt 
in the Order.
    613. This authority is bolstered by at least two additional 
provisions. First, as the D.C. Circuit has explained, section 303(r) 
provides the Commission authority to ``make such rules and regulations 
and prescribe such restrictions and conditions, not inconsistent with 
law, as may be necessary to carry out the provisions of this chapter.'' 
Second, section 316 authorizes the Commission to adopt new conditions 
on existing licenses if it determines that such action ``will promote 
the public interest, convenience, and necessity.'' The Commission also 
has ample authority to impose conditions to serve the public interest 
in awarding licenses in the first instance. Moreover, this document's 
rules do not make any fundamental changes to those licenses. Rather, 
our rules are largely consistent with the current operation of the 
internet and the current practices of mobile BIAS providers.

[[Page 45530]]

    614. The RIF Order acknowledged that the Commission could rely on 
Title III licensing authority to support conduct rules but declined to 
follow the Commission's historical approach due to concerns about 
disparate treatment of wireline and wireless internet service 
providers. As discussed above, we classify BIAS as a Title II service 
and mobile BIAS as commercial mobile service. We believe that our 
reclassification avoids any inconsistent treatment between different 
categories of BIAS providers that may have resulted under the RIF 
Order's classification. Moreover, we recognize that the D.C. Circuit's 
Mozilla decision includes a brief statement as part of its review of 
the RIF Order's preemption decision stating that BIAS is not ``radio 
transmission,'' so Title III does not apply. But the RIF Order did not 
attempt to apply (or justify applying) Title III to BIAS, and the 
Mozilla decision did not develop any reasoning in support of that 
assertion. Rather, we read the Mozilla court's statement that ``BIAS is 
not `radio transmission' '' as limited to the court's decision to 
vacate the RIF Order's blanket preemption of State and local regulation 
of BIAS. In particular, the D.C. Circuit found that the Commission 
``fail[ed] to ground its sweeping Preemption Directive . . . in a 
lawful source of statutory authority,'' and concluded that ``in any 
area where the Commission lacks the authority to regulate, it equally 
lacks the power to preempt state law.'' Given this backdrop, we do not 
believe the court's statement should be read to call into question the 
Commission's prior recognition that mobile BIAS falls within the scope 
of Title III. Commenters did not address the court's statement 
regarding radio transmission in the Mozilla decision or the 
Commission's view that the court's statement does not call into 
question our prior recognition that mobile BIAS falls within the scope 
of Title III.
    615. Finally, CTIA argues that the Act forbids applying Title II 
common carrier regulations to BIAS, and in particular, to mobile BIAS. 
Similarly, a broad coalition consisting of local groups and individuals 
located throughout the U.S. urges the Commission to avoid reclassifying 
any mobile data-only service, but if it does, it should maintain the 
current regulatory classification under section 332(c)(2) as a non-
common-carrier private mobile service and thereafter exercise authority 
over mobile data-only service under sections 301, 302, 304, 309, and 
316 of the Act. For the reasons discussed above, we reject these 
arguments and conclude that mobile BIAS is best viewed as a commercial 
mobile service, or, in the alternative, the functional equivalent of 
commercial mobile service, and therefore, not private mobile service.

G. Other Laws and Considerations

    616. As the Commission did in the 2015 Open Internet Order, we make 
clear that the open internet rules we adopt in the Order do not expand 
or contract BIAS providers' rights or obligations with respect to other 
laws or preclude them from responding to safety and security 
considerations--including the needs of emergency communications and law 
enforcement, public safety, and national security authorities--or 
affect the ability of BIAS providers to make reasonable efforts to 
address transfers of unlawful content and unlawful transfers of 
content.
    617. Emergency Communications and Safety and Security Authorities. 
Consistent with our proposal in the 2023 Open Internet NPRM, and the 
2010 and 2015 Open Internet Orders, we adopt a rule that acknowledges 
the ability of BIAS providers to serve the needs of law enforcement and 
the needs of emergency communications and public safety, national, and 
homeland security authorities, which provides that nothing in the part 
supersedes any obligation or authorization a provider of broadband 
internet access service may have to address the needs of emergency 
communications or law enforcement, public safety, or national security 
authorities, consistent with or as permitted by applicable law, or 
limits the provider's ability to do so.
    618. We reiterate that the purpose of the safety and security 
provision is first to ensure that open internet rules do not restrict 
BIAS providers in addressing the needs of law enforcement authorities, 
and second to ensure that BIAS providers do not use the safety and 
security provision without the imprimatur of a law enforcement 
authority, as a loophole to the rules. As the Commission has previously 
explained, application of the safety and security rule should be tied 
to invocation by relevant authorities rather than to a BIAS provider's 
independent notion of the needs of law enforcement.
    619. The record reflects no disagreement that the open internet 
rules we adopt in the Order do not supersede any obligation a BIAS 
provider may have--or limit its ability--to address the needs of 
emergency communications or law enforcement, public safety, or homeland 
or national security authorities (together, ``safety and security 
authorities''). BIAS providers have obligations under statutes such as 
CALEA, the Foreign Intelligence Surveillance Act, and the Electronic 
Communications Privacy Act that could in some circumstances intersect 
with open internet protections. Likewise, in connection with an 
emergency, there may be Federal, state, tribal, and local public safety 
entities, homeland security personnel, and other authorities that need 
guaranteed or prioritized access to the internet in order to coordinate 
disaster relief and other emergency response efforts, or for other 
emergency communications.
    620. Transfers of Unlawful Content and Unlawful Transfers of 
Content. We also adopt our proposal to make clear that the open 
internet rules protect only lawful content, and are not intended to 
inhibit efforts by BIAS providers to address unlawful transfers of 
content or transfers of unlawful content, to ensure that open internet 
rules are not used as a shield to enable unlawful activity or to deter 
prompt action against such activity. Specifically, we find that nothing 
in the part prohibits reasonable efforts by a provider of broadband 
internet access service to address copyright infringement or other 
unlawful activity.
    621. The record is generally supportive of our proposal to make 
clear that the open internet rules protect only lawful content, and are 
not intended to inhibit efforts by BIAS providers to address unlawful 
transfer of content or transfers of unlawful content.
    622. For example, as the Commission explained in the 2015 Open 
Internet Order, the no-blocking rule should not be invoked to protect 
copyright infringement, which has adverse consequences for the economy, 
nor should it protect child pornography. We reiterate that our rules do 
not alter copyright laws and are not intended to prohibit or discourage 
voluntary practices undertaken to address or mitigate the occurrence of 
copyright infringement. However, as in 2015, we note that we ``retain 
the discretion to evaluate the reasonableness of broadband providers' 
practices under this rule on a case-by-case basis.''

H. Cost-Benefit Analysis

    623. In the 2023 Open Internet NPRM, we sought comment on the costs 
and benefits of Title II reclassification of BIAS and the proposed open 
internet rules. The record reflects a broad range of views on the 
potential costs and benefits of both. We apply a cost-benefit framework 
to evaluate the overall effect (net benefits or net costs) of 
reclassifying BIAS as a Title II telecommunications service and the 
open internet rules. While the record,

[[Page 45531]]

and indeed the nature of the benefits and costs under consideration, do 
not allow us to quantify the magnitude of the effects of the key 
decisions in the Order, we are able to reasonably assess their 
directional impact, that is, whether the result is on-net beneficial or 
costly. For example, it is difficult to quantify with precision the 
benefits of a more vibrant and thriving internet ecosystem, or of 
increased national security or public safety.
    624. The primary benefits and costs attributable to the Order are 
the changes in the economic welfare of consumers, BIAS providers, and 
edge providers that would occur due to our actions. Our cost-benefit 
analysis nets out transfers among these economic actors. We evaluate 
the costs and benefits of reclassifying BIAS as a Title II 
telecommunications service and of adopting our open internet rules 
relative to the regulatory framework introduced by the RIF Order, but 
adjust that baseline in light of changes since the Commission adopted 
it. Therefore, we compare the expected costs and benefits of these 
actions against the RIF Order framework of Title I classification of 
BIAS, but account for the existence of State open internet 
requirements, the statutorily required broadband label, and other 
changed circumstances since the RIF Order. Relevant changes that have 
occurred since the RIF Order include the national security environment 
and the increased need for cybersecurity. We find that the benefits of 
Title II reclassification and the proposed open internet rules outweigh 
the costs.
1. Title II Reclassification
    625. Fulfilling Key Public Interest Obligations and Objectives. As 
discussed in detail above, our reclassification decision will ensure 
the Commission can fulfill statutory obligations and important policy 
objectives. BIAS providers function as gatekeepers for both their end-
user customers who access the internet, and for the edge providers, 
transit providers, and CDNs that require reliable access to BIAS end-
user subscribers. The reclassification of BIAS and the rules we set 
forth in the Order will ensure that the internet remains open and that 
the virtuous cycle of edge innovation and broadband investment 
continues unabated. Furthermore, we find our reclassification of BIAS 
as a Title II service will have substantial additional benefits 
enabling the Commission to defend national security, promote 
cybersecurity, safeguard public safety, monitor network resiliency and 
reliability, protect consumer privacy and data security, support 
consumer access to BIAS, enable access to infrastructure, and improve 
disability access. As explained in that section above, we conclude that 
the RIF Order and RIF Remand Order did not fully consider, or gave too 
little weight, to those benefits of the classification of BIAS as a 
telecommunications service. Consequently, we reject those cost-benefit 
analyses as predicated on a finding of too little benefit from a Title 
II classification of BIAS. Although many of these policy benefits do 
not readily lend themselves to quantification, they flow directly from 
our reclassification of BIAS as a telecommunications service.
    626. Effect on Investment. Commenters argue that one of the 
greatest potential costs of reclassifying BIAS as a Title II 
telecommunications service is that it will lower BIAS provider 
investment incentives by reducing profits associated with the provision 
of BIAS, as well as by increasing regulatory uncertainty. These 
commenters claim that BIAS provider investment declined following 
previous announcements of Title II reclassification, and they cite 
studies that purport to demonstrate empirically that the application of 
Title II to BIAS providers harms investment. As our detailed analysis 
above shows, the concerns of these commenters are unfounded, as there 
is little compelling evidence that applying Title II to BIAS has such a 
measurable effect on investment. As we explain in that section above, 
our assessment of the available evidence regarding the effect of 
reclassification on investment leads to a different conclusion than 
that in the RIF Order. Insofar as the RIF Order's and RIF Remand 
Order's cost-benefit analyses were predicated on that different 
understanding of the effect of reclassification on investment, we 
reject them on that basis.
    627. We first note that generic claims that regulation can be 
harmful to investment and innovation do not persuade us in this 
specific case. Regulation is just one of several factors that drive 
investment and innovation in the broadband marketplace. Today, new 
State and Federal support programs are a significant driver of BIAS 
investment, and we expect Title II classification to allow BIAS-only 
providers to face lower deployment costs, for example, because they 
will be able to take advantage of our pole attachment rules under 
section 224 or seek assistance from the Commission or courts under 
section 253. In addition, the effects of regulations depend on the 
nature of the regulations adopted and on market conditions, and they 
may vary by market participant. As research and past experience show, 
appropriate telecommunications regulation may be required to create 
market conditions that are conducive to infrastructure investment, and 
we conclude that this is true in the present case. The Cable Act of 
1984 and its subsequent regulatory implementation by the Commission 
also dramatically increased investment in the cable industry by 
providing access to poles, ducts, conduits and public rights of way. In 
terms of open internet regulations in particular, many studies in the 
economics literature find that regulation can have positive effects on 
both BIAS and edge provider investment incentives, and also find that 
overall economic welfare may be higher.
    628. Given the lack of clear direction provided by the theoretical 
economics literature on how reclassification may affect BIAS 
investment, commenters and our own analysis draw on the empirical 
economics literature to evaluate the likely impact. In contrast to the 
claims by commenters opposed to Title II reclassification, and the 
authors of the studies they cite, our analysis persuades us that 
reduced BIAS provider investment has not been causally linked to Title 
II reclassification. We find that the studies in the record that claim 
to establish this link are in some cases not applicable to the U.S. 
context and in all cases suffer from methodological and data issues 
that render their conclusions unreliable. With regard to the one 
rigorous empirical study where the underlying data used by the author 
were readily available, we find that, after correcting the data, which 
had been revised and updated by the Bureau of Economic Analysis, and 
fixing the methodological problems identified with the study, the 
correct conclusion from the study is that there is no evidence that the 
announcement of Title II reclassification had any statistically 
significant effect on investment. We note that a second study by 
Briglauer et al. was cited in the record but the underlying data for 
this study were not available to us in our analysis. This study was 
heavily relied upon by the RIF Order to reach a conclusion that Title 
II reclassification is harmful to investment, but after these 
corrections, this study supports our conclusion that there is no 
empirical evidence in the record that Title II reclassification would 
have any significant negative impact on broadband investment. We 
therefore give little weight to these claims and view these claimed 
costs as being

[[Page 45532]]

relatively limited in our cost-benefit analysis.
    629. Regulatory Compliance Costs. Commenters separately argue that 
Title II classification will result in higher regulatory compliance 
costs compared to Title I classification, and that increased compliance 
costs will disproportionately impact small BIAS providers that lack the 
resources to handle the new compliance obligations. Although no 
commenter provided quantitative estimates of the magnitude of these 
potential compliance costs, we acknowledge that reclassifying BIAS as a 
Title II telecommunications service may lead to some increase in 
compliance costs. In our predictive judgment, and based on qualitative 
analysis, however, we believe that these compliance costs are likely to 
be small and are outweighed by the benefits of reclassification that 
have been identified in our analysis.
    630. We first note that any direct increase in compliance costs 
from the regulatory changes adopted in the Order appears modest, and to 
the extent we adopt any new rules governing BIAS in the future, we will 
assess incremental compliance costs, if any, at that time as part of a 
cost-benefit analysis. We further note that we have taken several steps 
to reduce compliance burdens, especially for BIAS providers with 
100,000 or fewer subscribers. In the cases where we do apply a Title II 
provision to BIAS, we attempt to minimize compliance costs in the 
application of the provision. For example, we grant blanket section 214 
authority for the provision of BIAS to any entity currently providing 
or seeking to provide BIAS--except those specifically identified 
entities whose application for international section 214 authority was 
previously denied or whose domestic and international section 214 
authority was previously revoked and their current or future affiliates 
and subsidiaries. Similarly, we waive the rules implementing section 
222 to the extent such rules are applicable to BIAS as a 
telecommunications service and any future application of rules will be 
undertaken only after seeking public comment and considering the costs 
of such rules. In all cases where applying a provision may increase 
regulatory compliance costs, we have been careful to apply the 
provisions of Title II to BIAS providers only in a manner in which the 
expected benefits exceed expected costs. For example, we do not apply 
sections 201 and 202 in their entirety because we conclude that the 
costs of applying the provisions to impose ex ante or ex post rate 
regulation on BIAS would exceed the benefits. Finally, the Title II 
provisions that assist BIAS network deployment, including sections 224 
and 253 (in addition to section 332), do not impose affirmative 
obligations or compliance costs on BIAS providers. Rather, they simply 
give BIAS providers new rights to seek assistance from the Commission 
and/or courts, if they find that such assistance is on-net beneficial. 
For example, a BIAS provider seeking pole access under section 224 
would only do so if it were to its benefit. Similarly, a BIAS provider 
would only seek Commission or court intervention under section 253 if 
it were to its benefit.
    631. The adoption of bright-line rules should also generally lower 
overall compliance costs because they provide greater certainty to 
market participants in regard to conduct that would likely result in an 
enforcement action relative to the current regulatory framework 
established by the RIF Order in which there is uncertainty as to which 
conduct would be deemed to be harmful to edge providers or the open 
internet and such conduct is subject to ex post, case-by-case 
enforcement by antitrust or consumer protection authorities, or by 
states that have passed open internet rules. The RIF Order framework 
could therefore lead to lengthy enforcement actions and ultimately 
higher compliance costs for BIAS providers as they are required to 
determine through a trial-and-error process whether actions that would 
violate the bright-line rules we adopt would be subject to enforcement 
at the State or Federal level. In our judgment, establishing bright-
line Federal rules and enforcing those rules through a single expert 
agency will achieve timelier and more consistent outcomes and reduce 
the costs of uncertainty for all interest holders, and thus yield 
significant public interest benefits. As noted above, our approach to 
preemption also provides regulatory certainty insofar as it is clear 
that the Commission, versus another Federal agency, will address, and 
as needed preempt, on a case-by-case basis, State or local laws that 
unduly frustrate or interfere with interstate communications.
    632. ``Regulatory Creep.'' The last broad set of potential costs 
that some commenters raise with respect to reclassification of BIAS as 
a Title II telecommunications service pertain to ``regulatory creep.'' 
Although we forbear from applying Title II rate regulation provisions 
to BIAS, some commenters express concern that the Commission will adopt 
future rate regulation. We are not persuaded by these unsupported 
assertions. We have carefully tailored application of all Title II 
provisions to current broadband market conditions and avoided any 
unnecessary regulations. Moreover, decades of Commission precedent 
suggest that, in contrast to regulatory creep, the Commission has 
tended to deregulate over time and to forbear from additional statutory 
provisions and Commission rules. For example, the Commission in 1980 
streamlined the regulation of non-dominant interexchange carriers by 
eliminating ex ante rate regulation and streamlining existing section 
214 requirements. And after Congress gave the Commission forbearance 
authority under the 1996 Act, the Commission has forborne from dozens 
of statutory provisions and Commission rules, where it found that 
enforcement was not necessary to preserve ``just and reasonable'' terms 
of service, to protect consumers, or to serve the public interest. The 
Commission's forbearance decisions include eliminating tariff-filing 
requirements, the ending of certain Automated Reporting Management 
Information System (ARMIS) reporting requirements, and streamlining the 
regulation of business data services. We see no reason the Commission 
would depart from this general tendency to remove regulations when they 
are no longer required due to changed circumstances. Finally, we note 
that any changes to this framework or future rules the Commission 
considers adopting under the Title II framework would be subject to 
notice and comment and an analysis of the record, including any 
purported costs, prior to adoption.
2. Bright-Line Rules
    633. No-Blocking and No-Throttling Rules. While larger BIAS 
providers have repeatedly assured their customers and publicly 
advertised that they will not block access to legal content or engage 
in throttling, not all BIAS providers have made such commitments. 
Moreover, there are no assurances that providers will continue to make 
or adhere to such commitments in the future, and the framework 
established in the RIF Order allows BIAS providers to engage in such 
activities as long as they disclose these practices to consumers. Given 
that BIAS providers have incentives and the ability to engage in 
blocking and throttling, our rules against this conduct protect free 
expression online, reduce uncertainty for edge providers when 
developing new services and applications, and provide necessary 
foundations for preventing anticompetitive or discriminatory conduct 
that harms edge providers and the open internet. Even if, in the 
absence of rules, BIAS providers

[[Page 45533]]

generally would not block or throttle the edge services offered today, 
our bright-line rules will reduce uncertainty for, and protect, 
innovators seeking to offer new edge services, particularly if those 
new services would compete with services that BIAS providers offer now 
or will offer in the future. If investors fear future blocking or 
throttling could be forthcoming despite current BIAS provider 
commitments, such investments in new edge services may not be 
undertaken. At the same time, the no-blocking and no-throttling rules, 
because they are clear bright-line rules, should deter such conduct, or 
to the extent such conduct does occur, should enable the Commission to 
aggressively respond. Thus, we conclude that these rules will create 
substantial economic value for edge providers and consumers, and for 
the economy broadly. We note that even the RIF Order acknowledged that 
``the costs of [banning blocking and throttling] are likely small,'' 
though it went on to State that the rule ``may create some compliance 
costs.'' We agree that the costs of banning blocking and throttling are 
likely to be small and further conclude that any compliance costs are 
also likely small, particularly for those BIAS providers that have 
committed to refrain from--and intend to continue refraining from--such 
conduct. We part ways with the RIF Order insofar as it also concluded 
that the benefits of those rules also are likely to be small based on 
the availability of ``antitrust and consumer protection law, coupled 
with consumer expectations and ISP incentives.'' As we discuss above, 
by contrast, we find antitrust and consumer protection laws to be 
insufficient to guard the open internet. We also conclude that the 
marketplace alone is not sufficient to guard against harmful blocking 
and throttling of internet traffic. Consequently, in contrast to the 
RIF Order, we not only find the costs of our rules banning blocking and 
throttling to be low, but we also conclude that these rules provide 
meaningful benefits that more than outweigh those limited costs.
    634. No Paid or Affiliated Prioritization. As discussed above, we 
find that, absent regulation, BIAS providers may use paid and 
affiliated prioritization in ways that harm edge providers and the open 
internet. In particular, they could have the incentive and ability to 
use paid or affiliated prioritization to raise the costs of edge 
providers that compete with their vertically integrated edge affiliates 
or with edge providers with whom they have contractual arrangements. 
Moreover, if they can profitably charge edge providers for prioritized 
access, BIAS providers may have an incentive to strategically degrade, 
or decline to maintain or increase, the quality of service to non-
prioritized uses and users in order to raise the profits from selling 
priority access. We further find that adopting a bright-line rule 
prohibiting paid and affiliated prioritization has the advantage of 
relieving small edge providers, innovators, and consumers of the burden 
of detecting and challenging cases of socially harmful paid 
prioritization.
    635. The RIF Order's cost-benefit analysis concluded that a ban on 
paid prioritization has a net negative effect on economic welfare. We 
find that this conclusion was the result of the RIF Order heavily 
discounting the benefits of banning paid prioritization identified 
above and substantially overstating the costs. On the cost side, the 
RIF Order first contends that ``the ban on paid prioritization has 
created uncertainty and reduced ISP investment,'' but, as we have 
demonstrated, claims regarding the 2015 Open Internet Order's allegedly 
detrimental effect on investment were unsupported. The RIF Order 
analysis further states ``that the ban [on paid prioritization] is 
likely to prevent certain types of innovative applications from being 
developed or adopted.'' We disagree with this statement for two 
reasons. First, the rules adopted in the Order do not prohibit BIAS 
providers from developing innovations that require quality of service 
differentiation that are compatible with the open internet rules. 
Second, while we recognize that there may also be positive use cases of 
paid prioritization and some costs associated with a ban on such 
practices, we find that such positive use cases may be addressed 
through the waiver rule we adopt. Consequently, the RIF Order's claim 
that there would be high costs in the form of forgone investment and 
innovation cannot be sustained. Thus, we find the benefits of adopting 
a bright-line rule prohibiting paid prioritization exceed its costs.
3. General Conduct Rule
    636. We also find that the expected benefits of the general conduct 
standard we adopt will exceed the expected costs. We find, as the 
Commission found in 2015, that the Commission needs a backstop 
mechanism to respond to attempts by BIAS providers to wield their 
gatekeeper power in ways that do not violate the bright-line rules, but 
nevertheless may compromise the open internet. We acknowledge that 
several commenters raise concerns about possible regulatory uncertainty 
created by the general conduct rule and its potential negative effects 
on investment and innovation. To the extent that these commenters are 
addressing the costs and benefits of our decision, we find that these 
concerns should be reduced as a result of our providing a list of 
factors that we will consider in our analysis and our creation of an 
advisory opinion process. Indeed, in upholding the 2015 Open Internet 
Order's general conduct rule, the D.C. Circuit cited with approval to 
``the Commission's articulation of the Rule's objectives and the 
specification of factors that will inform its application,'' and 
emphasized that the Commission ``also included a description of how 
each factor will be interpreted and applied'' with examples 
``specifically identif[ying] the kind of conduct that would violate the 
Rule.'' In this context, the court explained, ``[t]he flexible approach 
adopted by the General Conduct Rule aims to address that concern [of 
over-specificity leading to loopholes] in a field in which `specific 
regulations cannot begin to cover all of the infinite variety of 
conditions.' '' Exercising our predictive judgment, we find that the 
general conduct rule should not impose significant ex ante compliance 
costs on BIAS providers, but it should enable the Commission on a case-
by-case basis to address conduct that is not covered by the bright-line 
rules, but that nevertheless harms consumers, edge providers, and the 
open internet. Creating a flexible general conduct rule allows more 
agile Commission responses to developments that might harm the open 
internet, and should spur innovation experiments and experiential 
learning by providing guidance on the types of actions that are likely 
to harm the open internet.
    637. We recognize that this conclusion differs substantially from 
the RIF Order, which found that the costs of the general conduct rule 
exceed the benefits. We find that the Commission's analysis in the RIF 
Order significantly understated the benefits of the general conduct 
rule and overstated costs. The RIF Order analysis asserts that the 
benefits of the general conduct rule are nearly zero because the 
consumer protection and antitrust laws provide adequate protections and 
because examples of harmful conduct are rare. We disagree with both 
premises as we have shown that BIAS providers have the incentive and 
ability to harm edge providers and have provided examples of when such 
conduct has occurred. Furthermore, we find that existing antitrust and 
consumer protection enforcement are insufficient to protect

[[Page 45534]]

consumers and edge providers from BIAS provider conduct that may harm 
the open internet. In addition, the primary costs associated with the 
conduct rule that the RIF Order identified were that it would reduce 
investment, and we have shown that the evidence the RIF Order presented 
as the basis for these concerns is unreliable. We conclude that the 
general conduct rule is a necessary component of a forward-looking 
regulatory framework that will provide both greater flexibility for the 
Commission to address new issues as they arise and greater certainty to 
BIAS providers in terms of the factors that will be considered when 
assessing whether new practices will be likely to harm the open 
internet.
4. Transparency Rule
    638. In evaluating the potential costs and benefits of the 
transparency rule we adopt, we need to compare it to the status quo. As 
discussed above, as part of the IIJA, Congress directed the Commission 
to promulgate rules for a broadband label to be displayed at the point 
of sale by BIAS providers. The Broadband Label Order responded to this 
Congressional directive and reintroduced many of the transparency 
requirements eliminated in the RIF Order as required by the IIJA. 
Therefore, the baseline transparency framework against which costs and 
benefits are compared has changed significantly since the cost-benefit 
analysis performed in the RIF Order. The transparency rules established 
in the Order represent only small, incremental changes relative to the 
prevailing statutorily required regulations. The most important 
incremental changes relative to this new baseline is our adoption of 
the direct customer disclosure requirement and our re-adoption of the 
2015 enhancements to the performance characteristics disclosure 
requirements. However, as we explain above, given that such performance 
characteristic information is widely commercially available and large 
BIAS providers already have direct notification capabilities in their 
networks, and that we provide a temporary exemption for BIAS providers 
with 100,000 or fewer subscribers, the current change in incremental 
costs of adopting this rule are small. Furthermore, adopting these 
changes will provide consumer benefits that exceed these small costs by 
enabling consumers to select the appropriate BIAS that meets their 
needs and by ensuring that the consumer notification capabilities that 
are already in place are consistently providing consumers with 
sufficient information and time to consider adjusting their usage to 
avoid their BIAS provider from applying a network management practice 
that could result in additional unwanted charges or other adverse 
effects.
5. Preemption
    639. As discussed above, we preempt State or local measures that 
``interfere or are incompatible with the federal regulatory framework 
we establish today.'' Further, we will proceed on a case-by-case basis 
to consider challenged measures ``in light of the fact specific nature 
of particular preemption inquiries.'' We find that, under this standard 
and approach, the Commission can preempt incompatible State and local 
regulations, which we predict will reduce the costs on BIAS providers 
caused by inconsistent State and local regulations and reduce 
regulatory uncertainty. At the same time, this standard recognizes and 
accommodates the ``concurrent regulatory authority [of states] over 
communications networks.'' This stands in contrast to the situation 
under the RIF Order where the D.C. Circuit invalidated the RIF Order's 
attempt at preemption, thereby allowing for the emergence of 
inconsistent State laws, which could increase compliance costs. 
Consequently, we find that the benefits of the approach we adopt here 
will exceed the costs.

IV. Constitutional Considerations

A. First Amendment

1. Free Speech Rights
    640. We believe that the rules we adopt in the Order fully comport 
with the First Amendment and do not unlawfully infringe any free speech 
rights, contrary to the few commenters who suggest otherwise. That is 
so for two reasons. First, when BIAS providers are carrying their 
users' communications, they are not themselves acting as speakers or 
engaged in any expressive activity subject to the First Amendment, but 
instead are acting as mere conduits for the speech of others. 
Alternatively, even if BIAS providers were treated as speakers 
themselves when carrying their customers' communications, the rules we 
adopt in the Order withstand the applicable intermediate standard of 
scrutiny because they are tailored to serve important governmental 
interests without unduly burdening speech. We note that most of the 
comments filed by BIAS providers and their trade associations in this 
proceeding have not raised or joined these First Amendment arguments.
    641. The Supreme Court has rejected similar arguments that private 
parties have a freestanding First Amendment right to refuse to carry or 
allow third-party speech when it does not interfere with the private 
party's own ability to speak. In PruneYard Shopping Center v. Robins, 
the Court rejected a shopping mall's First Amendment challenge to a 
State law requiring it to allow members of the public to distribute 
pamphlets on the mall's property. The Court explained that allowing 
others to distribute their messages would not impair the mall owner's 
right to free expression because ``[t]he views expressed by members of 
the public'' in a forum open to the public ``will not likely be 
identified with those of the owner,'' and because the owner always 
``can expressly disavow any connection with the message . . . and could 
explain that the persons are communicating their own messages by virtue 
of [the] state law.'' Similarly, in Rumsfeld v. Forum for Academic & 
Institutional Rights, Inc., the Court unanimously rejected several law 
schools' First Amendment challenge to a law requiring them to permit 
military recruiters access to school facilities, despite the schools' 
ideological objections to the military's employment policies, as a 
condition for Federal funding. The Court held that permitting access by 
military recruiters would not violate the schools' First Amendment 
rights because ``[n]othing about recruiting suggests that law schools 
agree with any speech by recruiters, and nothing . . . restricts what 
the law schools may say about the military policies.''
    642. The rules we adopt in the Order do not abridge any speech or 
expression by BIAS providers because, when a BIAS provider offers BIAS 
as understood by consumers and as defined in the Order--that 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--the BIAS provider is acting 
merely as a conduit for others' speech, not as a speaker itself. In 
other words, when providing BIAS, BIAS providers ``merely facilitate 
the transmission of the speech of others rather than engage in speech 
in their own right.'' Consumers ``expect that they can obtain access to 
all content available on the internet, without the editorial 
intervention of their broadband provider.'' When BIAS providers deliver 
content that has been requested by their customers, they are no 
different from telephone companies or package

[[Page 45535]]

delivery services like FedEx, which have never been thought to be 
engaging in their own expressive activity when merely carrying the 
messages of others.
    643. Unlike newspapers, websites, social media platforms, or even 
cable operators, BIAS providers do not select, alter, arrange, 
annotate, or contextualize the content that their users request or that 
edge providers deliver in response. BIAS providers neither select which 
information to present nor determine how it is presented. Consumers 
understand and expect BIAS providers providing BIAS to transparently 
transmit information to and from the applications and services of the 
consumers' choosing, not their BIAS providers' choosing, without change 
in form or content. Consumers do not understand a BIAS provider to be 
selecting or compiling speech to present the BIAS provider's own 
expressive offering. Unlike the editors of a newspaper, the curators of 
a library or museum, or the managers of a theater, BIAS providers do 
not select which speech to feature, nor do they arrange or compile the 
speech they transmit into a new form of expression. BIAS providers 
instead deliver the content that their users independently have chosen, 
without engaging in any distinct expressive activity or communicating 
any distinct message.
    644. The record in this proceeding confirms this conclusion. In the 
2023 Open Internet NPRM, we sought comment on ``whether or to what 
extent ISPs engage in content moderation, curation, or otherwise limit 
or exercise control over what third-party content their users are able 
to access on the internet.'' We further observed that ``some social 
media platforms and other edge providers purport to engage in various 
forms of content moderation or editorial control'' and asked whether 
there is ``any record of ISPs announcing and engaging in comparable 
activity?'' In response, no BIAS provider has identified any evidence 
of BIAS providers engaging or wishing to engage in any such practices, 
nor has any other commenter. We find that silence telling. Despite our 
asking, there is no evidence in the record that any BIAS provider 
covered by our Order engages in any exercise of editorial control, 
curation, or other expressive activity. And, we note, BIAS providers 
have often relied on their status as mere conduits and their lack of 
editorial control to obtain immunity from copyright violations and 
other liability for material distributed over their networks.
    645. We further agree with the D.C. Circuit that, in providing 
BIAS, BIAS providers do not communicate any distinct or discernible 
message of their own: ``The Supreme Court has explained that the First 
Amendment comes `into play' only . . . when an `intent to convey a 
particularized message [is] present, and in the surrounding 
circumstances the likelihood [is] great that the message would be 
understood by those who viewed it.' '' But a BIAS provider's delivery 
of content requested by a user neither reflects an intent to convey any 
particular message nor is likely to be perceived or understood by the 
user as conveying the provider's message. ``[W]hen a subscriber uses 
his or her broadband service to access internet content of her own 
choosing, she does not understand the accessed content to reflect her 
broadband provider's editorial judgment or viewpoint,'' and ``nothing 
about affording indiscriminate access to internet content suggests that 
the broadband provider agrees with the content an end user happens to 
access.''
    646. Similarly, we are not persuaded that a BIAS provider's 
decision to block or throttle a given website or application would, 
standing alone, constitute expressive or communicative conduct 
implicating the First Amendment. Blocking or throttling internet 
traffic is not inherently expressive: A customer ``may have no reason 
to suppose that her inability to access a particular application, or 
that the markedly slow speeds she confronts when attempting to use it, 
derives from her ISP's choices rather than from some deficiency in the 
application. After all, if a subscriber encounters frustratingly slow 
buffering of videos when attempting to use Netflix, why would she 
naturally suspect the fault lies with her ISP rather than with Netflix 
itself?'' Such conduct would not convey a message without some separate 
``explanatory speech''--that is, the conduct would support a message 
``only [if the BIAS provider] accompanied [its] conduct with speech 
explaining it,'' such as a statement on its website or in its customer 
bills explaining what content it restricts and why. And the Supreme 
Court has explained that where conduct ``is not inherently expressive'' 
without separate explanatory speech, parties ``are not speaking'' when 
they seek to engage in that conduct, so the conduct itself is not 
protected by the First Amendment. BIAS providers may still express 
their views on any internet content or other matters by stating those 
views on their websites, in their customer bills, or elsewhere, and 
that explanatory speech would receive full First Amendment protection--
but the separate act of blocking or throttling individual websites or 
applications is not ``inherently expressive'' conduct and is not 
protected by the First Amendment.
    647. We find additional support for this view in the long history 
of common carriage regulation in the United States. ``The common 
carrier doctrine is a body of common law dating back long before our 
Founding'' that ``vests [the government] with the power to impose 
nondiscrimination obligations on communication and transportation 
providers that hold themselves out to serve all members of the public 
without individualized bargaining.'' The Supreme Court has frequently 
distinguished common carriers from speakers, broadcasters, or editors 
engaged in First Amendment activity. As the D.C. Circuit has observed, 
common carriers ``have long been subject to nondiscrimination and equal 
access obligations akin to'' those we adopt here ``without raising any 
First Amendment question.'' This ``absence of any First Amendment 
concern in the context of common carriers rests on the understanding 
that such entities, insofar as they are subject to equal access 
mandates, merely facilitate the transmission of the speech of others 
rather than engage in speech in their own right.'' And ``[g]iven the 
firm rooting of common carrier regulation in our Nation's 
constitutional tradition, any interpretation of the First Amendment 
that would make [it] facially unconstitutional would be highly 
incongruous.''
    648. To be sure, a different question would be presented if a BIAS 
provider were to create and market a curated internet access product 
that caters to some target audience and is clearly presented as such to 
consumers. The rules we adopt in the Order apply only to offerings of 
mass-market broadband service providing indiscriminate access to all or 
substantially all internet endpoints, which consumers understand to 
transparently transmit information to and from the internet 
applications and services of their choosing without being curated or 
edited by their BIAS provider. A curated internet product, if clearly 
identified and marketed as such, would fall outside the scope of the 
Order. And if a BIAS provider ``represent[s] itself to consumers as 
affording them less of a `go wherever you'd like to go' service and 
more of a `go where we'd like you to go' service,'' that might well be 
an expressive offering receiving First Amendment protection. A BIAS 
provider that wishes to provide such a curated service may freely do 
so, so long as the BIAS provider ``make[s] adequately clear its 
intention to provide

[[Page 45536]]

edited services of that kind, so as to avoid giving customers a 
mistaken impression that they would enjoy indiscriminate access to all 
content available on the internet[ ] without the editorial intervention 
of their broadband provider.''
    649. If a BIAS provider decides to offer a service that is clearly 
identified as providing edited or curated internet access, consumers 
would be free to decide whether to subscribe to that curated offering 
based on its expressed editorial policies or viewpoint. No commenter 
has offered evidence of any curated internet access product in the 
marketplace, and we take no position on whether there is market demand 
for such a product. But what BIAS providers may not do is provide 
consumers what purports to be ordinary mass-market broadband service, 
which consumers reasonably understand to provide indiscriminate access 
to all or substantially all internet applications and services of their 
choosing, and then engage in discriminatory practices that deny 
customers the service they reasonably expect. Our rules thus simply 
ensure that BIAS providers ``act in accordance with their customers' 
legitimate expectations.'' We agree with the USTA decision that nothing 
supports ``the counterintuitive notion that the First Amendment 
entitles an ISP to engage in the kind of conduct barred by the net 
neutrality rule--i.e., to hold itself out to potential customers as 
offering them an unfiltered pathway to any web content of their own 
choosing, but then, once they have subscribed, to turn around and limit 
their access to certain web content based on the ISP's own commercial 
preferences.''
    650. Even if our rules were construed to somehow implicate BIAS 
providers' First Amendment speech rights, they would still be 
permissible as content-neutral regulations satisfying intermediate 
scrutiny. The rules make no distinction based on content or viewpoint, 
and a content-neutral regulation will be upheld if it ``furthers an 
important or substantial government interest . . . unrelated to the 
suppression of free expression'' and if it ``do[es] not burden 
substantially more speech than is necessary.''
    651. The rules we adopt in the Order serve multiple important--
indeed compelling--governmental interests. To begin, the rules 
``[a]ssur[e] that the public has access to a multiplicity of 
information sources'' by promoting ``the widest possible dissemination 
of information from diverse and antagonistic sources.'' The Supreme 
Court has declared this to be ``a governmental purpose of the highest 
order,'' as it ``promotes values central to the First Amendment.'' The 
rules we adopt in the Order also enable fair competition among edge 
providers and ensure a level playing field for a wide variety of 
speakers who might otherwise be disadvantaged, and the Supreme Court 
has likewise deemed it ``undisputed'' that ``the Government has an 
interest in eliminating restraints on fair competition . . . , even 
when the individuals or entities subject to particular regulations are 
engaged in expressive activity protected by the First Amendment.'' And 
we find that our rules will substantially further the national interest 
in ensuring that Americans have widespread access to a vibrant internet 
on reasonable terms. Indeed, Congress has specifically directed the 
Commission to ``encourage the deployment on a reasonable and timely 
basis of advanced telecommunications capability to all Americans'' and 
to ``promote the continued development of the internet and other 
interactive computer services and other interactive media.''
    652. None of these important governmental interests involves the 
suppression of free expression or targets any speakers' messages based 
on their content. For the reasons we have explained, moreover, we 
firmly believe the actions we take in the Order further these 
interests. And the rules we adopt are tailored to accomplish those 
interests without placing an unnecessary burden on speech: BIAS 
providers themselves remain free to speak on an unlimited range of 
subjects, including by publicizing their views on their own websites or 
by delivering their messages on inserts accompanying customers' monthly 
bills; they simply may not unreasonably suppress the speech of others 
in their capacity as conduits. And in any event, ``even on the doubtful 
assumption that a narrower but still practicable . . . rule could be 
drafted . . . content-neutral regulations are not `invalid simply 
because there is some imaginable alternative that might be less 
burdensome on speech.' ''
    653. We disagree with CTIA's argument that under the Supreme 
Court's Turner decisions, the government can satisfy intermediate First 
Amendment scrutiny only by providing specific evidence that a given 
BIAS provider possesses market power within its specific geographic 
market. For one thing, Turner discussed three important interests: (1) 
preserving free broadcast television, (2) promoting a multiplicity of 
voices, and (3) promoting fair competition. For another, even as to 
competition-related interests, the Court held that there is an 
important Federal interest in ``preserving a multiplicity of broadcast 
outlets regardless of whether the conduct that threatens it . . . rises 
to the level of an antitrust violation.''
    654. More generally, such a market power requirement would be at 
odds with the ordinary operation of intermediate scrutiny under the 
First Amendment, which has routinely been articulated as requiring ``an 
important or substantial governmental interest . . . unrelated to the 
suppression of free expression'' but never as requiring any specific 
showing of market power. And it would be ahistorical for a 
constitutional amendment adopted in 1791 to be predicated on modern-day 
concepts of market power. To be sure, the Court in the Turner cases 
found that cable companies had ``bottleneck'' control, but in doing so, 
did not rely on granular empirical evidence or market-by-market 
analysis, but instead largely on legislative findings, anecdotal 
testimony, and general economic principles. In response to the 
dissent's argument that a court must carefully and independently 
examine the economic evidence, the Court acknowledged it was ultimately 
upholding the challenged must-carry rules based on ``defer[ence] to the 
reasonable judgment of a legislative body'' and opined that ``[t]he 
level of detail in factfinding required by the dissent would be an 
improper burden for courts to impose on the Legislative Branch.'' Our 
explanation of ``how broadband providers' position in the market gives 
them the economic power to restrict edge-provider traffic and charge 
for the services they furnish edge providers''--that is, that a BIAS 
provider possesses a terminating-access monopoly over edge providers' 
ability to reach the BIAS provider's customer, sustained by barriers to 
entry arising from switching costs and imperfect information, which 
allows BIAS providers to act as gatekeepers--is at least as sufficient 
to sustain the rules we adopt in the Order.
    655. In sum, the rules we adopt in the Order do not 
unconstitutionally abridge any speech or expression by BIAS providers. 
As the record confirms, BIAS providers are merely conduits for others' 
speech--not speakers themselves--when delivering content that has been 
requested by their users. BIAS providers do not select, alter, arrange, 
annotate, or contextualize the content that their users request or that 
edge providers deliver in response, and there is no evidence in the 
record that any BIAS providers covered by our order engage in any 
exercise of editorial control, curation, or other expressive activity. 
And even if BIAS providers

[[Page 45537]]

could somehow show that they were engaged in expression protected by 
the First Amendment, the rules we adopt in the Order would still 
satisfy constitutional requirements because they further important 
governmental interests without any substantially greater burden on 
speech than necessary to fulfill those interests.
2. Compelled Disclosure
    656. CTIA--alone--briefly argues that our updated transparency rule 
unconstitutionally compels speech. We disagree. The Supreme Court held 
in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of 
Ohio (Zauderer) that requiring businesses to disclose ``purely factual 
and uncontroversial information'' about their services is generally 
permissible so long as the requirements are not ``unjustified'' or 
``unduly burdensome.'' Our transparency rule complies with that 
standard, just like the similar 2010, 2015, and 2018 transparency rules 
embraced by multiple administrations and upheld through multiple court 
challenges.
    657. Here, as in Zauderer, our updated transparency rule is a 
reasonable measure to prevent deception or consumer confusion, among 
other things. The record of consumer complaints received by the 
Commission reflects that consumers are often unaware of or confused by 
practices that may result in slowed or impaired access to internet 
applications and services, impose data caps, or otherwise fail to 
provide the level of service reasonably expected at the advertised 
rates. Our rules ensure that consumers purchasing BIAS receive what 
they reasonably expect--that is, unimpeded access to all or 
substantially all internet endpoints of their choosing. Courts have 
recognized that BIAS providers have both the incentive and the ability 
to engage in harmful conduct, often in ways that might not be readily 
apparent to users; without enforceable transparency measures, consumers 
might have no ability to know if their BIAS provider is engaging in 
such practices.
    658. The disclosures required by the updated transparency rule will 
also provide essential information the Commission needs to fulfill its 
statutory mandate to biennially report to Congress on the State of the 
communications marketplace, including the State of competition in the 
marketplace and any marketplace practices that pose a barrier to 
competitive entry into the marketplace.
    659. Other important governmental interests also strongly support 
our updated transparency rule. The disclosures required by our 
transparency rule protect competition and curb the incentive of BIAS 
providers to interfere with, or disadvantage, third-party edge 
providers' services by helping to ensure that such practices come to 
light. More generally, accurate information about BIAS provider 
practices encourages innovation and the development of high-quality 
services, and in turn helps drive consumer demand and broadband 
investment. Transparency and disclosure of BIAS provider practices 
further ensure that edge providers have the information they need to 
develop conforming applications and services. And transparency 
ultimately helps ensure that consumers, edge providers, and all other 
participants in the internet economy have confidence in the networks 
and business practices of the BIAS providers they rely on for their 
communications.
    660. The need for our transparency rule is thus clear. And on the 
other side of the ledger, CTIA makes no showing that requiring BIAS 
providers to disclose ``purely factual and uncontroversial information 
about the terms under which . . . services will be available'' would be 
unduly burdensome.
    661. Finally, even if Zauderer did not apply, we find that the 
updated transparency rule would withstand scrutiny even under the 
Central Hudson framework for substantially the same reasons, and for 
the reasons given in the RIF Order. Recognizing that the First 
Amendment ``affords a lesser protection to commercial speech than to 
other constitutionally guaranteed expression,'' the government may 
regulate commercial speech under Central Hudson to directly advance a 
substantial government interest so long as the regulation is not more 
extensive than necessary to fulfill that interest. We note that the 
Central Hudson test is a peculiar fit here because it purports to 
govern ``restrictions'' on speech, whereas disclosure requirements are 
not restrictions.
    662. As explained, our transparency rule serves multiple 
substantial governmental interests in preventing deception and consumer 
confusion, protecting competition, and encouraging innovation. The rule 
also directly advances those interests. For consumers, ``subscribers 
will be able to use the disclosed information to evaluate BIAS 
offerings and determine which offering will best enable the use of the 
applications and service they desire.'' ``In addition,'' these 
disclosures ``help ensure accountability by ISPs and the potential for 
quick remedies if problematic practices occur.'' Meanwhile, edge 
providers who ``might be particularly sensitive to the manner in which 
an ISP provides broadband internet access service potentially could 
benefit from [this information] to better ensure the performance of 
th[eir] internet applications and services'' and ``to evaluate how well 
their offerings will perform.'' This transparency ``helps reduce 
barriers to entry that otherwise could exist and encourages 
entrepreneurs' and small businesses' ability to compete and develop and 
advance innovating offerings in furtherance of our statutory 
objectives.'' Moreover, disclosure of information to the Commission 
will allow the Commission to publish reports and information for 
consideration by consumers and edge providers, and ``will provide the 
Commission the information it needs for the evaluation required by 
[section 13] of the Act, enabling [the agency] to spur regulatory 
action or seek legislative changes as needed.'' And the transparency 
rule is appropriately tailored to these interests and no more extensive 
than necessary to substantially fulfill them. The RIF Order cited 
section 257 of the Act, which directed the Commission ``to report to 
Congress on such marketplace barriers and how they have been addressed 
by regulation or could be addressed by recommended statutory changes.'' 
Congress later repealed subsection (c) of section 257 and replaced it 
with section 13, 47 U.S.C. 163, which imposes a substantially similar 
reporting requirement.

B. Fifth Amendment Takings

    663. As with the Commission's analysis under the Fifth Amendment's 
Takings Clause in the 2015 Open Internet Order, we do not identify any 
takings concerns with our actions here. Because our actions here merely 
regulate the commercial relationship between BIAS providers and their 
customers, they do not grant a right to physical occupation of the 
broadband providers' property and thus do not constitute a per se 
taking. Our actions also do not constitute a regulatory taking under 
the relevant ad hoc balancing test because of the minimal effect on 
BIAS providers' reasonable investment-backed expectations and the 
nature of our actions, which are far removed from a traditional 
physical invasion of property by the government. Nor are our actions 
confiscatory, because our regulatory approach enables BIAS providers to 
obtain a fair return on the network costs incurred in carrying traffic 
to and from BIAS end users.

[[Page 45538]]

1. Per Se Taking
    664. We reject claims that our actions would effect a per se taking 
by granting third parties a right to physically occupy broadband 
providers' facilities. The record does not reflect a concern that our 
actions in the Order deprive BIAS providers of all economically 
beneficial use of their property--nor would we find such a concern 
merited. We therefore limit our discussion to the physical occupation 
theory of per se takings. As a threshold matter, as the Commission 
observed in the 2015 Open Internet Order, ``[c]ourts have repeatedly 
declined to extend per se takings analysis to rules regulating the 
transmission of communications traffic over a provider's facilities,'' 
and ``these decisions comport with the Supreme Court's perspective that 
permanent physical occupation of property is a narrow category of 
takings jurisprudence and is `easily identifiable' when it does 
occur.'' The record here does not reveal precedent to the contrary. At 
most, the record notes concurring or dissenting statements of judges or 
justices--frequently merely tentatively noting and/or setting aside 
possible takings questions--that predate most of the precedent on which 
we rely. The record also references an argument made in cable must-
carry-related advocacy before the Commission seeking to rely on 
precedent addressing the scenario where ``the Government has condemned 
business property with the intention of carrying on the business, as 
where public-utility property has been taken over for continued 
operation by a governmental authority.'' But Kimball Laundry referenced 
the government's takeover of an entire going concern, citing specific 
examples involving water utilities. We are not persuaded that it 
automatically follows from such precedent that any step short of that--
including regulation of the transmissions over a carrier's network--
must be understood as involving a physical intrusion that triggers a 
per se taking analysis, particularly given the separate line of 
precedent--not invoked here--that a per se taking occurs where a 
property owner is denied all economically beneficial use of property. 
Since our rules also do not impose requirements that otherwise could be 
understood as requiring physical access to BIAS providers' property, we 
are not persuaded that there is a government-required physical 
occupation of BIAS providers' property here at all.
    665. Independently, requirements like those restricting blocking 
and throttling regulate BIAS providers' commercial relationship with 
their end-user customers. Such requirements simply ensure that end 
users can use the service that BIAS providers have offered them, and 
that the end users have paid for, to obtain access to content, 
applications, and services that end users have elected to receive. Note 
that our rules do not apply to ``curated'' services and, where our 
bright-line conduct rules apply, allow for reasonable network 
management. The Commission explained in 2015 that where ``owners 
voluntarily invite others onto their property--through contract or 
otherwise--the courts will not find that a physical occupation has 
occurred for purposes of constituting a per se taking.'' Where, as 
here, BIAS providers have invited traffic on their networks through the 
offering of BIAS, reasonable conduct regulations can be imposed on the 
use of such properties without raising per se takings concerns. Thus, 
to the extent that BIAS providers allow customers to transmit or 
receive information over their networks, the imposition of reasonable 
conduct rules on the provision of BIAS does not constitute a per se 
taking.
    666. Finally, even if the rules did impose a type of physical 
occupation on the facilities of BIAS providers, such an imposition is 
not an unconstitutional taking because BIAS providers are compensated 
for the traffic passing over their networks through end-user revenues.
2. Regulatory Taking
    667. Contrary to CTIA's claims, the actions we take in the Order 
also do not constitute a regulatory taking under the ``essentially ad 
hoc, factual inquiries'' into a variety of unweighted factors used by 
courts. Those factors evaluate the ``economic impact of the 
regulation,'' the degree of interference with ``investment-backed 
expectations,'' and ``the character of the government action.'' 
``[E]ach of these [factors] focuses directly upon the severity of the 
burden that government imposes upon private property rights.'' Because 
our actions in the order are far removed from anything ``functionally 
equivalent to the classic taking in which government directly 
appropriates private property or ousts the owner from his domain,'' we 
find no regulatory taking.
    668. As relevant to the multi-factor takings analysis, we find the 
economic impact of our actions on BIAS providers' property interests to 
be limited. As we explain above, our classification of BIAS as a 
telecommunications service is unlikely to be closely tied to BIAS 
provider investment decisions, which instead are more likely driven by 
broader economic conditions, technology changes, and BIAS providers' 
general business development decisions. And in any case, although some 
diminution in value of property is necessary, it is not itself 
sufficient to constitute a taking.
    669. We also find no meaningful interference with BIAS providers' 
investment-based expectations. ``[T]o support a claim for a regulatory 
taking, an investment-backed expectation must be reasonable,'' 
involving ``an objective, but fact-specific inquiry into what, under 
all the circumstances, the [plaintiff] should have anticipated.'' As a 
general matter, property owners cannot expect that existing legal 
requirements regarding their property will remain entirely unchanged, 
and the Commission explained at length in 2015 the history of 
Commission jurisdiction and regulatory oversight over BIAS. 
Additionally, persons operating in a regulated environment develop 
fewer reliance interests in industries subject to comprehensive 
regulation. Such considerations have even greater force in light of 
intervening events. The regulatory approach adopted by the Commission 
in the 2015 Open Internet Order was affirmed by the D.C. Circuit in the 
face of legal challenges, and petitions for rehearing en banc and 
certiorari were rejected by the D.C. Circuit and the Supreme Court, 
respectively. We recognize that the Federal government, in opposing the 
petitions for certiorari, pointed to the fact that the 2015 Open 
Internet Order had been superseded by the RIF Order. But the issue is 
not whether the regulatory approach in the 2015 Open Internet Order was 
set in stone, but the reasonableness of any BIAS provider expectation 
that such a regulatory approach was foreclosed. Irrespective of the 
specific arguments made by the Federal government at that time, we see 
the Supreme Court's denial of certiorari as at least one part of the 
overall history relevant to evaluating BIAS providers' reasonable 
expectations. By contrast, when the Commission sought to change course 
in the RIF Order, the regulatory approach adopted there was vacated in 
part and the classification decision was remanded. The Commission's 
attempt to respond to the remand in the RIF Remand Order is subject to 
petitions for reconsideration before the Commission and judicial review 
in the D.C. Circuit, which have remained pending until our action in 
the Order. We dispense with the petitions for reconsideration in this 
item. That history subsequent to the 2015 Open Internet Order 
demonstrates

[[Page 45539]]

that BIAS providers have even less basis than before to reasonably 
expect that they would operate under a materially different regulatory 
approach than what we adopt in the Order.
    670. The character of our actions here also cuts against a finding 
of a regulatory taking. In that regard, the Penn Central Court held 
that a taking ``may more readily be found when the interference with 
property can be characterized as a physical invasion by government . . 
. than when interference arises from some public program adjusting the 
benefits and burdens of economic life to promote the common good.'' As 
we already have explained when rejecting a per se takings claim, our 
regulatory approach to BIAS simply seeks to ensure that end users can 
use the service that BIAS providers have offered them and that the end 
users have paid for, rather than involving something that properly 
could be understood as a physical invasion by the government.
    671. Finally, because we do not regulate BIAS providers' ability to 
set market rates for the broadband internet access services they offer 
end users, there is no reason to believe that our actions will deprive 
broadband providers of just compensation, thus fully addressing any 
takings claim.
3. Confiscation
    672. Commenters fare no better when they seek to invoke Fifth 
Amendment precedent from the ratemaking context. As the Supreme Court 
has held: ``The guiding principle [in the ratemaking context] has been 
that the Constitution protects utilities from being limited to a charge 
for their property serving the public which is so `unjust' as to be 
confiscatory. . . . If the rate does not afford sufficient 
compensation, the [government] has taken the use of utility property 
without paying just compensation.'' Because we leave BIAS providers 
free to set market rates for the broadband internet access services 
they offer end-users, we see no evidence that our regulatory approach 
``threaten[s] an [ISP's] financial integrity'' and is confiscatory.
    673. We reject commenters' efforts to reach a contrary conclusion 
by identifying a separate, service that BIAS providers may offer to 
edge providers and focusing narrowly on what BIAS providers can charge 
edge providers for such a service. As the Commission recognized in 
2015, and we affirm in the Order, any such `` `edge service' is 
secondary, and in support of, the promise made to the end user, and 
broadband provider practices with respect to edge providers--including 
terms and conditions for the transfer and delivery of traffic to (and 
from) the BIAS subscriber--impact the broadband provider's provision of 
the Title II broadband internet access service.'' Given the 
relationship between BIAS end users and edge providers, it is the same 
traffic delivery that is at issue whether viewed from the perspective 
of the end user or the edge provider--the traffic demanded by end 
users, for example, is the traffic that edge providers seek to deliver, 
with the BIAS provider serving as the intermediary from the perspective 
of either end of the exchange. From a takings standpoint, we thus 
conclude that the relevant issue is whether a BIAS provider's use of 
its network for the carriage of BIAS traffic is subject to confiscatory 
Commission regulation. The Order leaves BIAS providers free to charge 
market-based rates for the use of its facilities to carry the relevant 
traffic. Indeed, the freedom to charge market-based end-user rates has 
been--and remains--a consistent part of the Commission's overall 
regulatory approach for BIAS whether under the framework of the 2015 
Open Internet Order, the RIF Order, or the Order and is consistent with 
the Commission strong commitment to not engage in rate regulation, 
despite speculative claims from some commenters that the Commission may 
someday decide to reverse course. We are persuaded that ``the end 
result'' of the regulatory approach we adopt here allows for the 
``attraction of capital and compensation for risk'' for a BIAS 
provider's investment in its network used to carry BIAS traffic.

V. Order on Reconsideration

    674. We now turn to the Petitions for Reconsideration of Common 
Cause et al., INCOMPAS, Public Knowledge, and Santa Clara seeking 
reconsideration of the RIF Remand Order. As described more fully below, 
we grant these petitions to the extent consistent with and described in 
the Order, and otherwise dismiss as moot all four petitions. In 
particular, for the reasons discussed in the Order, we vacate the RIF 
Remand Order and find that through the 2023 Open Internet NPRM and the 
Order, we provide the relief petitioners have sought.
    675. In Mozilla, the D.C. Circuit remanded the RIF Order for 
further consideration, finding that the Commission failed to adequately 
evaluate and address the potential negative effects of reclassifying 
BIAS as a Title I information service on (1) protecting public safety; 
(2) promoting infrastructure deployment by regulating pole attachment 
rights; and (3) providing Lifeline support for BIAS to low-income 
consumers through the Universal Service Fund. In response to the 
court's remand, the Wireline Competition Bureau issued a Public Notice 
(85 FR 12555 (Mar. 3, 2020)) seeking to refresh the record on these 
issues. Subsequently, the Commission adopted the RIF Remand Order, in 
which it reaffirmed its conclusions from the RIF Order and found that 
reclassification of BIAS as a Title I information service would promote 
public safety, facilitate broadband infrastructure deployment, and 
allow the Commission to continue to provide Lifeline support for BIAS.
    676. The RIF Remand Order (and, through it, the RIF Order) has 
remained under further administrative and judicial review. One week 
after the RIF Remand Order was published in the Federal Register, the 
CPUC filed a petition for judicial review in the D.C. Circuit. 
Meanwhile, Common Cause et al., INCOMPAS, Public Knowledge, and Santa 
Clara filed timely petitions for agency reconsideration of the RIF 
Remand Order (discussed further below). The D.C. Circuit has held 
judicial review of the RIF Remand Order in abeyance pending the 
Commission's consideration of the petitions for reconsideration.
    677. On October 19, 2023, the Wireline Competition Bureau issued a 
Public Notice (88 FR 74389 (Oct. 31, 2023)) seeking comment on the 
issues raised in the four petitions for reconsideration and on the 
connection between those issues and the recently adopted 2023 Open 
Internet NPRM. Several commenters responded to the Bureau's Public 
Notice, either in separate filings that specifically discuss the merits 
of one or more petitions or as part of their overall comments to the 
2023 Open Internet NPRM. To the extent necessary, we grant INCOMPAS's 
request that we waive the page limitation set forth in Sec.  1.429 of 
the Commission's rules that applies to Oppositions to Petitions for 
Reconsideration and Replies to Oppositions. Given that the two 
proceedings are interrelated and in light of the number and complexity 
of issues, we find that good cause is shown and that it is in the 
public interest to allow stakeholders to submit filings responsive to 
both proceedings that may exceed the page limitation.
    678. Petitioners ask that the Commission reverse, vacate, or 
withdraw the RIF Remand Order, and request that the Commission initiate 
a new rulemaking to reclassify BIAS as a Title II telecommunications 
service and reinstate the open internet conduct

[[Page 45540]]

rules. Collectively, petitioners make several procedural arguments for 
why the Commission should reconsider the RIF Remand Order. Common Cause 
et al. and Public Knowledge each assert that procedural deficiencies in 
the process the Commission used to adopt the RIF Remand Order are cause 
for reconsideration. Common Cause et al. argue that because the 
Commission failed to open the record to receive comment on the impact 
of the COVID-19 pandemic, it failed to adequately consider harms of 
reclassifying BIAS as a Title I information service on public safety, 
pole attachments, and the Lifeline program. In addition, Public 
Knowledge claims that because the Commission did not adopt a notice of 
proposed rulemaking prior to adopting the RIF Remand Order, and instead 
sought comment through a Bureau-issued public notice, the Commission 
did not follow the proper rulemaking procedures under the APA.
    679. Common Cause et al., INCOMPAS, and Santa Clara also each 
provide several substantive arguments for why the RIF Remand Order 
should be reconsidered. Common Cause et al. argue that the RIF Remand 
Order weakened the Lifeline program at a time when it was most needed. 
In limiting the Lifeline program to facilities-based broadband-capable 
networks that support voice service, Common Cause et al. argue that the 
Commission failed to account for how this would affect BIAS during the 
COVID-19 pandemic and ignored evidence of BIAS-only providers that were 
seeking to enter the Lifeline program. These petitioners also take 
issue with the RIF Remand Order's conclusion that even if a court were 
to reject the Commission's legal authority to provide Lifeline support 
to the BIAS of a common carrier, the overall benefits of 
reclassification would outweigh this cost. Common Cause et al. assert 
that this position contradicts both the Commission's policy and 
statutory goals of achieving universal service, and that it also goes 
against the purpose for which the Lifeline program was first created.
    680. Santa Clara argues in its Petition that, despite the 
Commission's statutory mandate to consider and promote public safety, 
the Commission failed to seriously consider this issue in either the 
RIF Order or the RIF Remand Order. Because modern public safety efforts 
rely on the public's access to BIAS, Santa Clara argues that the 
Commission needs the ability to adopt ex ante conduct rules in order to 
fulfill its public safety mandate. Santa Clara disagrees with the RIF 
Order's analysis that consumers and edge providers will be protected 
from BIAS provider misconduct by a combination of market forces, 
consumer choice, public pressure, and ex post antitrust and consumer 
protection remedies. And it argues that instead of responding to the 
Mozilla court's criticism of this reasoning, the RIF Remand Order 
simply restates it without further analysis. Furthermore, Santa Clara 
criticizes the RIF Remand Order for the negative impact it will have on 
the development of public-safety-focused edge provider content. 
Finally, Santa Clara rejects the RIF Remand Order's conclusion that 
reclassification of BIAS as a Title I information service will increase 
investment and innovation, and that these benefits will outweigh any 
harm to public safety, and further argues that the Commission ignored 
evidence of the harmful impact of reclassification on public safety.
    681. INCOMPAS asserts in its Petition that the RIF Remand Order did 
not sufficiently address the Mozilla court's concerns regarding public 
safety and pole attachments. INCOMPAS notes that while it supports the 
Commission's reconsideration of the RIF Remand Order due to the harms 
to Lifeline consumers, it focuses its petition on public safety and 
pole attachment concerns because those are the issues that directly 
relate to the issues that its member companies face. With regard to 
public safety, INCOMPAS argues broadly that the RIF Remand Order is 
flawed because it ``turns its back on the historical role of the 
Commission to protect the public's ability to connect without 
permission.'' More specifically, INCOMPAS asserts that the RIF Remand 
Order relies on unsubstantiated claims of increased investment to 
support its conclusions that the benefits of Title I classification 
outweigh potential public safety concerns. INCOMPAS also argues that 
the Commission wrongly dismisses the potential harms to public safety 
submitted into the record and overlooks the importance of having an 
expert agency with the authority to create ex ante rules to protect the 
public. And in reaching its conclusions, the petitioner criticizes the 
Commission for not properly accounting for the lack of competition in 
the residential BIAS market or the harms that large BIAS providers will 
cause consumers and edge providers. With respect to pole attachments, 
INCOMPAS contends that the RIF Remand Order's examination of the issue 
similarly does not comply with the Mozilla court's instructions. 
INCOMPAS takes issue with the inadequate consideration the RIF Remand 
Order gives to how reclassification will eliminate BIAS-only providers' 
pole attachment rights; rejects the RIF Remand Order's argument that 
this lack of pole attachment rights under section 224 will allow BIAS-
only providers to enter into more flexible and innovative arrangements; 
and argues that, contrary to its suggestion otherwise, the RIF Remand 
Order does not resolve the issue of State authority to regulate pole 
attachments.
    682. In light of the Commission's actions in the Order, we grant in 
large part and otherwise dismiss as moot each of the four Petitions for 
Reconsideration of the RIF Remand Order. The Commission will consider a 
petition for reconsideration when the petitioner shows either a 
material error in the Commission's original order, or raises additional 
facts or arguments, not known or existing at the time of the 
petitioner's last opportunity to present such matters. Petitions for 
reconsideration which rely on facts or arguments not previously 
presented to the Commission but which were known or existing at the 
time of the petitioner's last opportunity to present such matters may 
nonetheless be granted if the Commission determines that consideration 
of the facts and arguments relied on is required in the public 
interest. While the Petitioners raise some arguments that existed at 
the time of the filing of their Petitions, we find it would serve the 
public interest to consider them in the Order, when we have fully 
considered how the Title II classification and our open internet rules 
impact public safety, pole attachments, and Lifeline service. Indeed, 
we explain above how classification of BIAS as an information service 
is inconsistent with the best interpretation of the statute and cannot 
be reconciled with our responsibilities with regard to public safety, 
pole attachments, and universal service support to low-income 
consumers. Thus, to the extent the Petitions requested that the 
Commission reconsider and/or vacate the RIF Remand Order or RIF Order 
itself, we do so here. As a procedural matter, we find that we have 
effectively provided the relief sought by each of the Petitions through 
a combination of the 2023 Open Internet NPRM and the Order's actions. 
To the extent the Petitions sought readoption or reimposition of open 
internet conduct rules consistent with the 2015 Open Internet Order and 
reclassification and/or reversion of BIAS as a Title II 
telecommunications service, we find that we have done so in the Order. 
As a substantive matter, for the

[[Page 45541]]

reasons explained above, we agree with the petitioners that the 
Commission's analysis in the RIF Order and RIF Remand Order was 
insufficient in addressing the public safety, pole attachment, and 
Lifeline-related repercussions of classifying BIAS as a Title I 
information service. To the extent the Petitions sought a new open-
internet-related rulemaking in response to the Mozilla remand, we 
dismiss them as moot in light of the rulemaking proceeding we have 
conducted to consider precisely those issues. To the extent concerns or 
issues raised in the Petitions remain, we dismiss them as moot on the 
basis that the adoption of the Order effectively replace and overturn 
the RIF Order and RIF Remand Order. The RIF Order was vacated in part 
and otherwise remanded to the Commission by the D.C. Circuit. Because 
the majority of the RIF Order framework thus remained in effect, our 
action on reconsideration has only prospective consequences, rather 
than having retrospective effect of the sort not possible through our 
new rulemaking action here.

VI. Severability

    683. We consider the actions we take in the Order to be separate 
and severable such that in the event any particular action or decision 
is stayed or determined to be invalid, we would find that the resulting 
regulatory framework continues to fulfill our goal of preserving and 
protecting the open internet and that it shall remain in effect to the 
fullest extent permitted by law. Though complementary, each of the 
rules, requirements, classifications, definitions, and other provisions 
that we establish in the Order operate independently to promote and 
protect the open internet, safeguard national security and public 
safety, and promote the deployment of broadband on a timely basis.
    684. Severability of Open Internet Rules from One Another. The open 
internet rules we adopt in the Order each operate independently to 
protect the open internet, promote the virtuous cycle, and encourage 
the deployment of broadband on a timely basis. The severability of the 
Commission's open internet rules was recognized by the Verizon court, 
which held that the Commission's transparency rule established in the 
2010 Open Internet Order was severable from the nondiscrimination and 
no-blocking rules also established in that Order. We continue to apply 
that view to the transparency, no-blocking, no-throttling, no-paid 
prioritization, and general conduct rules we adopt in the Order. While 
the Order's newly adopted rules put in place a suite of open internet 
protections, we find that each of these rules, on its own, serves to 
protect the open internet. Each rule protects against different 
potential harms and thus operates semi-independently from one another. 
For example, the no-blocking rule protects consumers' right to access 
lawful content, applications, and services by constraining BIAS 
providers' incentive to block competitors' content. The no-throttling 
rule serves as an independent supplement to this prohibition on 
blocking by banning the impairment or degradation of lawful content 
that does not reach the level of blocking. Should the no-blocking rule 
be declared invalid, the no-throttling rule would still afford 
consumers and edge providers significant protection, and thus could 
independently advance the goals of the open internet, if not as 
comprehensively were the no-blocking rule still in effect. The same 
reasoning holds true for the ban on paid prioritization, which protects 
against particular harms independent of the other bright-line rules. 
Finally, the no-unreasonable interference/disadvantage standard governs 
BIAS provider conduct generally, providing independent protections 
against those three harmful practices along with other and new 
practices that could threaten to harm internet openness. Were any of 
these individual rules held invalid, the resulting regulations would 
remain valuable tools for protecting the open internet.
    685. Severability of Rules Governing Mobile/Fixed Providers. We 
have also made clear in the Order that our rules apply to both fixed 
and mobile BIAS. These are two different services, and thus the 
application of our rules to either service functions independently. 
Accordingly, we find that should application of our open internet rules 
to either fixed or mobile BIAS be held invalid, the application of 
those rules to the remaining fixed or mobile service would still 
fulfill our regulatory purposes and remain intact.

VII. Procedural Matters

    686. Regulatory Flexibility Act. The Regulatory Flexibility Act of 
1980, as amended (RFA), requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' Accordingly, the Commission has prepared a Final Regulatory 
Flexibility Analysis (FRFA) concerning the potential impact of the rule 
and policy changes adopted in the Order on small entities. The FRFA is 
set forth in section VIII.

VIII. Final Regulatory Flexibility Analysis

    687. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Safeguarding and Securing the Open Internet Notice 
of Proposed Rulemaking (2023 Open Internet NPRM), released October of 
2023. The Commission sought written public comment on the proposals in 
the 2023 Open Internet NPRM, including comment on the IRFA. The 
comments received are discussed below in section B. This present Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Declaratory Ruling, Order, Report 
and Order, and Order on Reconsideration

    688. Broadband internet access service (BIAS) connections, not 
unlike other essential utilities, have proved essential to every aspect 
of our daily lives, from work, education, and healthcare, to commerce, 
community, and free expression. The COVID-19 pandemic revealed that 
without a BIAS connection, consumers could not fully participate in 
vital aspects of daily life. We find, and the record overwhelmingly 
reflects, that BIAS is not a luxury, but a necessity for education, 
communication, healthcare, and participation in the economy. The 
actions taken in the Order to restore the Commission's Title II 
authority over BIAS, reclassify mobile BIAS as a commercial mobile 
service, and adopt open internet conduct rules are necessary to help 
ensure the health, vitality, and security of the entire internet 
ecosystem.
    689. Need for, and objective of, reclassification. Our 
classification decision in the Order reestablishes the Commission's 
authority to protect consumers and resolves the pending challenges to 
the Commission's 2017 classification decision. We conclude that BIAS is 
best classified as a telecommunications service based on an analysis of 
the statutory definitions for ``telecommunications service'' and 
``information service'' established in the 1996 Act. This conclusion 
reflects the best reading of the statutory terms applying basic 
principles of textual analysis to the text, structure, and context of 
the Act in light of (1) how consumers understand BIAS and (2) the 
factual particulars of how the technology that enables the delivery of 
BIAS functions. We also conclude that

[[Page 45542]]

BIAS is not best classified as an information service. Classifying BIAS 
as a telecommunications service accords with Commission and court 
precedent and is fully and sufficiently justified under the 
Commission's longstanding authority and responsibility to classify 
services subject to the Commission's jurisdiction, as necessary. 
Additionally, as the expert agency entrusted by Congress to oversee our 
country's communications networks and services, our experience 
demonstrates that for the Commission to protect consumers and ensure a 
safe, reliable, and open internet, it must exercise its authority to do 
so under Title II of the Communications Act. As such, we also 
separately conclude that multiple policy considerations, relating to 
internet openness, national security, public safety, consumer privacy, 
broadband deployment, and disability access, each independently and 
collectively, support the reclassification of BIAS as a 
telecommunications service.
    690. We also reclassify mobile BIAS as a commercial mobile service. 
As we explain in the Declaratory Ruling, reclassifying mobile BIAS as a 
commercial mobile service is necessary to avoid the statutory 
contradiction that would result if the Commission were to conclude that 
mobile BIAS is a telecommunications service but not a commercial mobile 
service. Moreover, as we discuss in the Declaratory Ruling, because 
consumers regularly use both fixed and mobile broadband, it is critical 
to protect both services equally.
    691. Need for, and objectives of, the open internet rules. We 
affirm our belief from the 2023 Open Internet NPRM that baseline 
internet conduct rules for BIAS providers are necessary to enable the 
Commission to prevent and address conduct that harms consumers and 
competition. BIAS is an essential service that is critical to so many 
aspects of everyday life, from healthcare and education to work, 
commerce, and civic engagement. Because of its importance, we conclude 
that rules are necessary to promote free expression, encourage 
innovation, competition, and consumer demand, and protect public 
safety. As the Commission found in both 2010 and 2015, BIAS providers 
continue to have the incentive and ability to harm internet openness. 
We find that the framework that the Commission adopted in 2017 provides 
insufficient protection from these dangers, and that a safe, secure, 
and open internet is too important to consumers and innovators to leave 
unprotected. As in 2015, we find that conduct-based rules targeting 
specific practices are necessary, and accordingly adopt bright-line 
rules to prohibit blocking, throttling, and paid prioritization by 
providers of both fixed and mobile broadband internet access service.
    692. First, we reimpose a bright-line rule that prohibits providers 
from blocking lawful content, applications, services, or non-harmful 
devices, subject to reasonable network management. This ``no-blocking'' 
principle has long been a cornerstone of the Commission's policies, and 
in the internet context, dates back to the Commission's Internet Policy 
Statement. Second, we reimpose a separate bright-line rule prohibiting 
BIAS providers from impairing or degrading lawful internet traffic on 
the basis of content, application, service, or use of non-harmful 
device, subject to reasonable network management. We interpret this 
prohibition to include, for example, any conduct by a BIAS provider 
that impairs, degrades, slows down, or renders effectively unusable 
particular content, services, applications, or devices, that is not 
reasonable network management. We find this prohibition to be a 
necessary complement to the no-blocking rule. Without an equally strong 
no-throttling rule, BIAS providers might be able to thwart the no-
blocking rule by throttling or degrading traffic that is essentially 
blocking but that does not quite meet the no-blocking standard. Third, 
we reimpose the prohibition on paid or affiliated prioritization 
practices, subject to a narrow waiver process. As in 2015, we find that 
a prohibition on paid prioritization is necessary because preferential 
treatment arrangements have the potential to create a chilling effect, 
disrupting the internet's virtuous cycle of innovation, consumer 
demand, and investment.
    693. In addition to the three bright-line rules, we also reinstate 
a no-unreasonable interference/disadvantage standard, under which the 
Commission can prohibit practices that unreasonably interfere with the 
ability of consumers or edge providers to select, access, and use 
broadband internet access service to reach one another, thus causing 
harm to the open internet. This no-unreasonable interference/
disadvantage general conduct standard will operate on a case-by-case 
basis, applying a non-exhaustive list of factors, and is designed to 
evaluate other current or future BIAS provider policies or practices--
not covered by the bright-line rules--and prohibit those that harm the 
open internet. While we believe that our prohibitions on blocking, 
throttling, and paid prioritization will prevent many harms to the open 
internet, we believe that reimplementing the general conduct standard 
is a necessary backstop to ensure that BIAS providers do not find 
technical or economic ways to evade our bright-line rules.
    694. We also restore the text of the transparency rule to its 
original format adopted in 2010 and reaffirmed in 2015. We believe this 
change is necessary in order to encompass a broader relevant audience 
of interested parties than that captured by the RIF Order and more 
appropriately reflects the nature of the current transparency landscape 
where the broadband labels serve as a quick reference for consumers, 
and the transparency rule enables a deeper dive. Furthermore, we made 
minor revisions to the disclosures required by the transparency rule to 
better enable end-user consumers to make informed choices about 
broadband services and similarly to provide edge providers with the 
information necessary to develop new content, applications, services, 
and devices that promote the virtuous cycle of investment and 
innovation. In revising the specific transparency requirements, we 
contemplated the recently adopted broadband label rules to minimize 
unnecessary duplication and improve efficiency for providers.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    695. In response to the 2023 Open Internet NPRM, four entities 
filed comments or reply comments that specifically addressed the IRFA 
to some degree: WISPA, NTCA--the Rural Broadband Association (NTCA), 
ACA Connects, and National Rural Electric Cooperative Association 
(NRECA). Some of these entities, as well as others, filed comments or 
reply comments that more generally considered the small business impact 
of our proposals. We considered the proposals and concerns described by 
the various commenters in adopting the Order and accompanying rules.
    696. Some commenters expressed concern that reclassification and 
reimplementation of the open internet rules would be particularly 
onerous for small providers and suggest that the Commission issue a 
blanket exemption for small providers or from ``all but the most 
essential'' rules. ACA Connects urges the commission to delay 
application of the rules on small providers for at least six months or 
one year, forbear from applying sections 201, 202, and 208 to small 
providers, or defer sections 201 and 202 obligations into another 
proceeding to specifically define and limit the obligations for small 
providers. The National Federation of Independent Businesses

[[Page 45543]]

(NFIB) recommends that the Commission add certain language to our rules 
to protect small providers. NTCA states that even with proposed 
forbearance, small BIAS providers will face significant economic 
burdens, and there is no marketplace justification for regulatory 
intervention. WISPA urges the Commission to issue a FNPRM that examines 
whether to exempt small providers from the bright-line rules, general 
conduct rule, and transparency enhancements and to apply any exemptions 
to BIAS providers with 250,000 or fewer subscribers. WISPA also 
requests that the Commission reconsider application of sections 206, 
207, 208, 214, 218 and 220 of the Act to small providers and 
permanently exempt small BIAS-only providers from the Commission's 
transfer-of-control requirements. We carefully considered the effects 
reclassification and our rules would have on all BIAS providers and 
small entities, and while we did not create exemptions for small 
providers, we included temporary exemptions (with the potential to 
become permanent) for providers with 100,000 or fewer subscribers from 
the performance characteristic reporting enhancements and the direct 
notification requirement under the transparency rule, which will have 
the effect of benefitting many small providers. We do not believe 
exemptions beyond that which we have provided are necessary or in the 
public interest, particularly a blanket exemption from all rules, as 
the record fails to demonstrate customers of small BIAS providers 
should be afforded less protection than those of larger BIAS providers. 
Furthermore, as we noted above, in certain cases, reclassification will 
afford small providers additional rights (e.g., pole attachment rights) 
to which they are currently not entitled.
    697. NRECA urges the commission to define ``small entities'' as 
those with 100,000 broadband customers or less rather than those with 
1,500 employees or less as we proposed in our IRFA. NRECA suggests that 
our proposed definition is problematic because it would ``create a 
situation where a small-entity exception would swallow the general 
rule.'' According to NRECA, because most covered entities would fall 
within the ``small entity'' category under the Small Business 
Administration (SBA) size thresholds used in the IRFA, these thresholds 
would ``limit the Commission's ability to implement small-entity 
exceptions that would be meaningful for truly small entities.'' NTCA 
echoed NRECA's concerns regarding the definition. WISPA, however, does 
not agree with NRECA's proposed definition. We decline commenters' 
invitation to deviate from the SBA size standards for purposes of the 
regulatory flexibility analysis. NRECA does not argue that the size 
standard is inappropriate for regulatory flexibility analysis purposes. 
Rather, it focuses on exemptions from the rules adopted herein ``and 
for subsequent Title II regulations.'' As noted above, however, we have 
largely declined to provide exemptions from the rules adopted in the 
Order, as customers of all BIAS providers should be afforded their 
protection. The exceptions are temporary exemptions (with the potential 
to become permanent) from the performance characteristics disclosure 
enhancements and direct notification requirement for BIAS providers 
that we reason are less likely to already have in place the tools and 
mechanisms needed to allow customers to track usage or provide 
automated direct notifications or the resources to immediately report 
this information.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    698. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the SBA, and to provide a detailed 
statement of any change made to the proposed rules as a result of those 
comments. The Chief Counsel did not file any comments in response to 
the proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
Rules Will Apply

    699. The RFA directs agencies to provide a description of, and 
where feasible, an estimate of the number of small entities that may be 
affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small 
business applies ``unless an agency, after consultation with the Office 
of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' A ``small-business 
concern'' is one which: (1) is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.
1. Total Small Entities
    700. Small Businesses, Small Organizations, Small Jurisdictions. 
Our actions, over time, may affect small entities that are not easily 
categorized at present. We therefore describe, at the outset, three 
broad groups of small entities that could be directly affected herein. 
First, while there are industry specific size standards for small 
businesses that are used in the regulatory flexibility analysis, 
according to data from the SBA's Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 33.2 million businesses.
    701. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2022, there were 
approximately 530,109 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    702. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2022 Census of Governments indicate there were 
90,837 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. Of 
this number, there were 36,845 general purpose governments (county, 
municipal, and town or township) with populations of less than 50,000 
and 11,879 special purpose governments (independent school districts) 
with enrollment populations of less than 50,000. Accordingly, based on 
the 2022 U.S. Census of Governments data, we estimate that at least 
48,724 entities fall into the category of ``small governmental 
jurisdictions.''

[[Page 45544]]

2. Wired Broadband Internet Access Service Providers
    703. Wired Broadband Internet Access Service Providers (Wired 
ISPs). Providers of wired broadband internet access service include 
various types of providers except dial-up internet access providers. 
Wireline service that terminates at an end user location or mobile 
device and enables the end user to receive information from and/or send 
information to the internet at information transfer rates exceeding 200 
kilobits per second (kbps) in at least one direction is classified as a 
broadband connection under the Commission's rules. Wired broadband 
internet services fall in the Wired Telecommunications Carriers 
industry. The SBA small business size standard for this industry 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees.
    704. Additionally, according to Commission data on internet access 
services as of June 30, 2019, nationwide there were approximately 2,747 
providers of connections over 200 kbps in at least one direction using 
various wireline technologies. The Commission does not collect data on 
the number of employees for providers of these services, therefore, at 
this time we are not able to estimate the number of providers that 
would qualify as small under the SBA's small business size standard. 
However, in light of the general data on fixed technology service 
providers in the Commission's 2022 Communications Marketplace Report, 
we believe that the majority of wireline internet access service 
providers can be considered small entities.
3. Wireline Providers
    705. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired communications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services, wired (cable) audio and video programming distribution, and 
wired broadband internet services. By exception, establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry. 
Wired Telecommunications Carriers are also referred to as wireline 
carriers or fixed local service providers.
    706. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,146 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    707. Incumbent Local Exchange Carriers (Incumbent LECs). Neither 
the Commission nor the SBA have developed a small business size 
standard specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with an SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 1,212 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 916 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
    708. Competitive Local Exchange Carriers (Competitive LECs). 
Neither the Commission nor the SBA have developed a small business size 
standard specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with an SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 1,212 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 916 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
    709. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA have developed a small business size standard specifically for 
Interexchange Carriers. Wired Telecommunications Carriers is the 
closest industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms that operated in this 
industry for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 127 providers that reported they were engaged in the 
provision of interexchange services. Of these providers, the Commission 
estimates that 109 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, the 
Commission estimates that the majority of providers in this industry 
can be considered small entities.
    710. Operator Service Providers (OSPs). Neither the Commission nor 
the SBA has developed a small business size standard specifically for 
operator service providers. The closest applicable industry with a SBA 
small business size standard is Wired Telecommunications Carriers. The 
SBA small business size standard classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 3,054 firms in this industry that operated for the 
entire year. Of this number, 2,964 firms operated with fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service

[[Page 45545]]

Monitoring Report, as of December 31, 2021, there were 20 providers 
that reported they were engaged in the provision of operator services. 
Of these providers, the Commission estimates that all 20 providers have 
1,500 or fewer employees. Consequently, using the SBA's small business 
size standard, all of these providers can be considered small entities.
    711. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition for small businesses specifically applicable to 
Other Toll Carriers. This category includes toll carriers that do not 
fall within the categories of interexchange carriers, operator service 
providers, prepaid calling card providers, satellite service carriers, 
or toll resellers. Wired Telecommunications Carriers is the closest 
industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms in this industry that 
operated for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 90 providers that reported they were engaged in the 
provision of other toll services. Of these providers, the Commission 
estimates that 87 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
4. Wireless Providers--Fixed and Mobile
    712. Wireless Broadband Internet Access Service Providers (Wireless 
ISPs or WISPs). Providers of wired broadband internet access service 
include various types of providers except dial-up internet access 
providers. Wireline service that terminates at an end user location or 
mobile device and enables the end user to receive information from and/
or send information to the internet at information transfer rates 
exceeding 200 kbps in at least one direction is classified as a 
broadband connection under the Commission's rules. Wired broadband 
internet services fall in the Wired Telecommunications Carriers 
industry. The SBA small business size standard for this industry 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees.
    713. Additionally, according to Commission data on internet access 
services as of June 30, 2019, nationwide there were approximately 2,747 
providers of connections over 200 kbps in at least one direction using 
various wireline technologies. The Commission does not collect data on 
the number of employees for providers of these services, therefore, at 
this time we are not able to estimate the number of providers that 
would qualify as small under the SBA's small business size standard. 
However, in light of the general data on fixed technology service 
providers in the Commission's 2022 Communications Marketplace Report, 
we believe that the majority of wireline internet access service 
providers can be considered small entities.
    714. Wireless Telecommunications Carriers (except Satellite). The 
U.S. Census Bureau defines this industry as establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry. Wired Telecommunications Carriers are also referred to 
as wireline carriers or fixed local service providers.
    715. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,146 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    716. Wireless Communications Services. Wireless Communications 
Services (WCS) can be used for a variety of fixed, mobile, 
radiolocation, and digital audio broadcasting satellite services. 
Wireless spectrum is made available and licensed for the provision of 
wireless communications services in several frequency bands subject to 
part 27 of the Commission's rules. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with an SBA small business 
size standard applicable to these services. The SBA small business size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
there were 2,893 firms that operated in this industry for the entire 
year. Of this number, 2,837 firms employed fewer than 250 employees. 
Thus, under the SBA size standard, the Commission estimates that a 
majority of licensees in this industry can be considered small.
    717. The Commission's small business size standards with respect to 
WCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for the various frequency bands included in 
WCS. When bidding credits are adopted for the auction of licenses in 
WCS frequency bands, such credits may be available to several types of 
small businesses based average gross revenues (small, very small and 
entrepreneur) pursuant to the competitive bidding rules adopted in 
conjunction with the requirements for the auction and/or as identified 
in the designated entities section in part 27 of the Commission's rules 
for the specific WCS frequency bands.
    718. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.

[[Page 45546]]

    719. Wireless Resellers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for Wireless 
Resellers. The closest industry with a SBA small business size standard 
is Telecommunications Resellers. The Telecommunications Resellers 
industry comprises establishments engaged in purchasing access and 
network capacity from owners and operators of telecommunications 
networks and reselling wired and wireless telecommunications services 
(except satellite) to businesses and households. Establishments in this 
industry resell telecommunications and they do not operate transmission 
facilities and infrastructure. Mobile virtual network operators (MVNOs) 
are included in this industry. Under the SBA size standard for this 
industry, a business is small if it has 1,500 or fewer employees. U.S. 
Census Bureau data for 2017 show that 1,386 firms in this industry 
provided resale services during that year. Of that number, 1,375 firms 
operated with fewer than 250 employees. Thus, for this industry under 
the SBA small business size standard, the majority of providers can be 
considered small entities.
    720. 1670-1675 MHz Services. These wireless communications services 
can be used for fixed and mobile uses, except aeronautical mobile. 
Wireless Telecommunications Carriers (except Satellite) is the closest 
industry with an SBA small business size standard applicable to these 
services. The SBA size standard for this industry classifies a business 
as small if it has 1,500 or fewer employees. U.S. Census Bureau data 
for 2017 show that there were 2,893 firms that operated in this 
industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus, under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    721. According to Commission data as of November 2021, there were 
three active licenses in this service. The Commission's small business 
size standards with respect to 1670-1675 MHz Services involve 
eligibility for bidding credits and installment payments in the auction 
of licenses for these services. For licenses in the 1670-1675 MHz 
service band, a ``small business'' is defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and a ``very small business'' is defined as an entity that, together 
with its affiliates and controlling interests, has had average annual 
gross revenues not exceeding $15 million for the preceding three years. 
The 1670-1675 MHz service band auction's winning bidder did not claim 
small business status.
    722. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    723. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable industry with an SBA small 
business size standard is Wireless Telecommunications Carriers (except 
Satellite). The size standard for this industry under SBA rules is that 
a business is small if it has 1,500 or fewer employees. For this 
industry, U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated for the entire year. Of this number, 2,837 firms 
employed fewer than 250 employees. Additionally, based on Commission 
data in the 2022 Universal Service Monitoring Report, as of December 
31, 2021, there were 331 providers that reported they were engaged in 
the provision of cellular, personal communications services, and 
specialized mobile radio services. Of these providers, the Commission 
estimates that 255 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    724. Broadband Personal Communications Service. The broadband 
personal communications services (PCS) spectrum encompasses services in 
the 1850-1910 and 1930-1990 MHz bands. The closest industry with a SBA 
small business size standard applicable to these services is Wireless 
Telecommunications Carriers (except Satellite). The SBA small business 
size standard for this industry classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms that operated in this industry for the 
entire year. Of this number, 2,837 firms employed fewer than 250 
employees. Thus, under the SBA size standard, the Commission estimates 
that a majority of licensees in this industry can be considered small.
    725. Based on Commission data as of November 2021, there were 
approximately 5,060 active licenses in the Broadband PCS service. The 
Commission's small business size standards with respect to Broadband 
PCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for these services. In auctions for these 
licenses, the Commission defined ``small business'' as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and a ``very small business'' as an entity that, together with its 
affiliates and controlling interests, has had average annual gross 
revenues not exceeding $15 million for the preceding three years. 
Winning bidders claiming small business credits won Broadband PCS 
licenses in C, D, E, and F Blocks.
    726. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these, at this time we are not able to estimate the 
number of licensees with active licenses that would qualify as small 
under the SBA's small business size standard.
    727. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR) 
licenses allow licensees to provide land mobile communications services 
(other than radiolocation services) in the 800 MHz and 900 MHz spectrum 
bands on a commercial basis including but not limited to services used 
for voice and data communications, paging, and facsimile services, to 
individuals, Federal Government entities, and other entities licensed 
under part 90 of the Commission's rules. Wireless Telecommunications 
Carriers (except Satellite) is the closest industry with a SBA small 
business size standard applicable to these services. The SBA size 
standard for this industry classifies a business as small if it has 
1,500 or

[[Page 45547]]

fewer employees. For this industry, U.S. Census Bureau data for 2017 
show that there were 2,893 firms in this industry that operated for the 
entire year. Of this number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 95 
providers that reported they were of SMR (dispatch) providers. Of this 
number, the Commission estimates that all 95 providers have 1,500 or 
fewer employees. Consequently, using the SBA's small business size 
standard, these 119 SMR licensees can be considered small entities.
    728. Based on Commission data as of December 2021, there were 3,924 
active SMR licenses. However, since the Commission does not collect 
data on the number of employees for licensees providing SMR services, 
at this time we are not able to estimate the number of licensees with 
active licenses that would qualify as small under the SBA's small 
business size standard. Nevertheless, for purposes of this analysis the 
Commission estimates that the majority of SMR licensees can be 
considered small entities using the SBA's small business size standard.
    729. Lower 700 MHz Band Licenses. The lower 700 MHz band 
encompasses spectrum in the 698-746 MHz frequency bands. Permissible 
operations in these bands include flexible fixed, mobile, and broadcast 
uses, including mobile and other digital new broadcast operation; fixed 
and mobile wireless commercial services (including FDD- and TDD-based 
services); as well as fixed and mobile wireless uses for private, 
internal radio needs, two-way interactive, cellular, and mobile 
television broadcasting services. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with a SBA small business 
size standard applicable to licenses providing services in these bands. 
The SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus, under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    730. According to Commission data as of December 2021, there were 
approximately 2,824 active Lower 700 MHz Band licenses. The 
Commission's small business size standards with respect to Lower 700 
MHz Band licensees involve eligibility for bidding credits and 
installment payments in the auction of licenses. For auctions of Lower 
700 MHz Band licenses the Commission adopted criteria for three groups 
of small businesses. A very small business was defined as an entity 
that, together with its affiliates and controlling interests, has 
average annual gross revenues not exceeding $15 million for the 
preceding three years, a small business was defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and an entrepreneur was defined as an entity that, together with its 
affiliates and controlling interests, has average gross revenues not 
exceeding $3 million for the preceding three years. In auctions for 
Lower 700 MHz Band licenses seventy-two winning bidders claiming a 
small business classification won 329 licenses, twenty-six winning 
bidders claiming a small business classification won 214 licenses, and 
three winning bidders claiming a small business classification won all 
five auctioned licenses.
    731. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    732. Upper 700 MHz Band Licenses. The upper 700 MHz band 
encompasses spectrum in the 746-806 MHz bands. Upper 700 MHz D Block 
licenses are nationwide licenses associated with the 758-763 MHz and 
788-793 MHz bands. Permissible operations in these bands include 
flexible fixed, mobile, and broadcast uses, including mobile and other 
digital new broadcast operation; fixed and mobile wireless commercial 
services (including FDD- and TDD-based services); as well as fixed and 
mobile wireless uses for private, internal radio needs, two-way 
interactive, cellular, and mobile television broadcasting services. 
Wireless Telecommunications Carriers (except Satellite) is the closest 
industry with a SBA small business size standard applicable to licenses 
providing services in these bands. The SBA small business size standard 
for this industry classifies a business as small if it has 1,500 or 
fewer employees. U.S. Census Bureau data for 2017 show that there were 
2,893 firms that operated in this industry for the entire year. Of that 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    733. According to Commission data as of December 2021, there were 
approximately 152 active Upper 700 MHz Band licenses. The Commission's 
small business size standards with respect to Upper 700 MHz Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years, and a 
``very small business'' an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Pursuant to these 
definitions, three winning bidders claiming very small business status 
won five of the twelve available licenses.
    734. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    735. 700 MHz Guard Band Licensees. The 700 MHz Guard Band 
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz 
frequency bands. Wireless Telecommunications Carriers (except 
Satellite) is the closest industry with a SBA small business size 
standard applicable to licenses providing services in these bands. The 
SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show

[[Page 45548]]

that there were 2,893 firms that operated in this industry for the 
entire year. Of this number, 2,837 firms employed fewer than 250 
employees. Thus, under the SBA size standard, the Commission estimates 
that a majority of licensees in this industry can be considered small.
    736. According to Commission data as of December 2021, there were 
approximately 224 active 700 MHz Guard Band licenses. The Commission's 
small business size standards with respect to 700 MHz Guard Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years, and a 
``very small business'' an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Pursuant to these 
definitions, five winning bidders claiming one of the small business 
status classifications won 26 licenses, and one winning bidder claiming 
small business won two licenses. None of the winning bidders claiming a 
small business status classification in these 700 MHz Guard Band 
license auctions had an active license as of December 2021.
    737. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    738. Air-Ground Radiotelephone Service Air-Ground Radiotelephone 
Service is a wireless service in which licensees are authorized to 
offer and provide radio telecommunications service for hire to 
subscribers in aircraft. A licensee may provide any type of air-ground 
service (i.e., voice telephony, broadband internet, data, etc.) to 
aircraft of any type, and serve any or all aviation markets 
(commercial, government, and general). A licensee must provide service 
to aircraft and may not provide ancillary land mobile or fixed services 
in the 800 MHz air-ground spectrum.
    739. The closest industry with an SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    740. Based on Commission data as of December 2021, there were 
approximately four licensees with 110 active licenses in the Air-Ground 
Radiotelephone Service. The Commission's small business size standards 
with respect to Air-Ground Radiotelephone Service involve eligibility 
for bidding credits and installment payments in the auction of 
licenses. For purposes of auctions, the Commission defined ``small 
business'' as an entity that, together with its affiliates and 
controlling interests, has average gross revenues not exceeding $40 
million for the preceding three years, and a ``very small business'' as 
an entity that, together with its affiliates and controlling interests, 
has had average annual gross revenues not exceeding $15 million for the 
preceding three years. In the auction of Air-Ground Radiotelephone 
Service licenses in the 800 MHz band, neither of the two winning 
bidders claimed small business status.
    741. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, the Commission 
does not collect data on the number of employees for licensees 
providing these services therefore, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    742. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155 
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz 
and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in 
these bands for the provision of various wireless communications 
services. Wireless Telecommunications Carriers (except Satellite) is 
the closest industry with a SBA small business size standard applicable 
to these services. The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    743. According to Commission data as of December 2021, there were 
approximately 4,472 active AWS licenses. The Commission's small 
business size standards with respect to AWS involve eligibility for 
bidding credits and installment payments in the auction of licenses for 
these services. For the auction of AWS licenses, the Commission defined 
a ``small business'' as an entity with average annual gross revenues 
for the preceding three years not exceeding $40 million, and a ``very 
small business'' as an entity with average annual gross revenues for 
the preceding three years not exceeding $15 million. Pursuant to these 
definitions, 57 winning bidders claiming status as small or very small 
businesses won 215 of 1,087 licenses. In the most recent auction of AWS 
licenses 15 of 37 bidders qualifying for status as small or very small 
businesses won licenses.
    744. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    745. 3650-3700 MHz band. Wireless broadband service licensing in 
the 3650-3700 MHz band provides for nationwide, non-exclusive licensing 
of terrestrial operations, utilizing

[[Page 45549]]

contention-based technologies, in the 3650 MHz band (i.e., 3650-3700 
MHz). Licensees are permitted to provide services on a non-common 
carrier and/or on a common carrier basis. Wireless broadband services 
in the 3650-3700 MHz band fall in the Wireless Telecommunications 
Carriers (except Satellite) industry with an SBA small business size 
standard that classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    746. The Commission has not developed a small business size 
standard applicable to 3650-3700 MHz band licensees. Based on the 
licenses that have been granted, however, we estimate that the majority 
of licensees in this service are small Internet Access Service 
Providers (ISPs). As of November 2021, Commission data shows that there 
were 902 active licenses in the 3650-3700 MHz band. However, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    747. Fixed Microwave Services. Fixed microwave services include 
common carrier, private-operational fixed, and broadcast auxiliary 
radio services. They also include the Upper Microwave Flexible Use 
Service (UMFUS), Millimeter Wave Service (70/80/90 GHz), Local 
Multipoint Distribution Service (LMDS), the Digital Electronic Message 
Service (DEMS), 24 GHz Service, Multiple Address Systems (MAS), and 
Multichannel Video Distribution and Data Service (MVDDS), where in some 
bands licensees can choose between common carrier and non-common 
carrier status. Wireless Telecommunications Carriers (except Satellite) 
is the closest industry with a SBA small business size standard 
applicable to these services. The SBA small size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of fixed 
microwave service licensees can be considered small.
    748. The Commission's small business size standards with respect to 
fixed microwave services involve eligibility for bidding credits and 
installment payments in the auction of licenses for the various 
frequency bands included in fixed microwave services. When bidding 
credits are adopted for the auction of licenses in fixed microwave 
services frequency bands, such credits may be available to several 
types of small businesses based average gross revenues (small, very 
small and entrepreneur) pursuant to the competitive bidding rules 
adopted in conjunction with the requirements for the auction and/or as 
identified in part 101 of the Commission's rules for the specific fixed 
microwave services frequency bands.
    749. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    750. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). 
Wireless cable operators that use spectrum in the BRS often 
supplemented with leased channels from the EBS, provide a competitive 
alternative to wired cable and other multichannel video programming 
distributors. Wireless cable programming to subscribers resembles cable 
television, but instead of coaxial cable, wireless cable uses microwave 
channels.
    751. In light of the use of wireless frequencies by BRS and EBS 
services, the closest industry with a SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    752. According to Commission data as December 2021, there were 
approximately 5,869 active BRS and EBS licenses. The Commission's small 
business size standards with respect to BRS involves eligibility for 
bidding credits and installment payments in the auction of licenses for 
these services. For the auction of BRS licenses, the Commission adopted 
criteria for three groups of small businesses. A very small business is 
an entity that, together with its affiliates and controlling interests, 
has average annual gross revenues exceed $3 million and did not exceed 
$15 million for the preceding three years, a small business is an 
entity that, together with its affiliates and controlling interests, 
has average gross revenues exceed $15 million and did not exceed $40 
million for the preceding three years, and an entrepreneur is an entity 
that, together with its affiliates and controlling interests, has 
average gross revenues not exceeding $3 million for the preceding three 
years. Of the ten winning bidders for BRS licenses, two bidders 
claiming the small business status won 4 licenses, one bidder claiming 
the very small business status won three licenses and two bidders 
claiming entrepreneur status won six licenses. One of the winning 
bidders claiming a small business status classification in the BRS 
license auction has an active licenses as of December 2021.
    753. The Commission's small business size standards for EBS define 
a small business as an entity that, together with its affiliates, its 
controlling interests and the affiliates of its controlling interests, 
has average gross revenues that are not more than $55 million for the 
preceding five (5) years, and a very small business is an entity that, 
together with its affiliates, its controlling interests and the 
affiliates of its controlling interests, has average gross revenues 
that are not more than $20 million for the preceding five (5)

[[Page 45550]]

years. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
5. Satellite Service Providers
    754. Satellite Telecommunications. This industry comprises firms 
``primarily engaged in providing telecommunications services to other 
establishments in the telecommunications and broadcasting industries by 
forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' Satellite 
telecommunications service providers include satellite and earth 
station operators. The SBA small business size standard for this 
industry classifies a business with $38.5 million or less in annual 
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms 
in this industry operated for the entire year. Of this number, 242 
firms had revenue of less than $25 million. Additionally, based on 
Commission data in the 2022 Universal Service Monitoring Report, as of 
December 31, 2021, there were 65 providers that reported they were 
engaged in the provision of satellite telecommunications services. Of 
these providers, the Commission estimates that approximately 42 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, a little more than half of these 
providers can be considered small entities.
    755. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. Providers of 
Internet services (e.g., dial-up ISPs) or Voice over Internet Protocol 
(VoIP) services, via client-supplied telecommunications connections are 
also included in this industry. The SBA small business size standard 
for this industry classifies firms with annual receipts of $35 million 
or less as small. U.S. Census Bureau data for 2017 show that there were 
1,079 firms in this industry that operated for the entire year. Of 
those firms, 1,039 had revenue of less than $25 million. Based on this 
data, the Commission estimates that the majority of ``All Other 
Telecommunications'' firms can be considered small.
6. Cable Service Providers
    756. Cable and Other Subscription Programming. The U.S. Census 
Bureau defines this industry as establishments primarily engaged in 
operating studios and facilities for the broadcasting of programs on a 
subscription or fee basis. The broadcast programming is typically 
narrowcast in nature (e.g., limited format, such as news, sports, 
education, or youth-oriented). These establishments produce programming 
in their own facilities or acquire programming from external sources. 
The programming material is usually delivered to a third party, such as 
cable systems or direct-to-home satellite systems, for transmission to 
viewers. The SBA small business size standard for this industry 
classifies firms with annual receipts less than $41.5 million as small. 
Based on U.S. Census Bureau data for 2017, 378 firms operated in this 
industry during that year. Of that number, 149 firms operated with 
revenue of less than $25 million a year and 44 firms operated with 
revenue of $25 million or more. Based on this data, the Commission 
estimates that a majority of firms in this industry are small.
    757. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standard for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. Based 
on industry data, there are about 420 cable companies in the U.S. Of 
these, only seven have more than 400,000 subscribers. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Based on industry data, there are 
about 4,139 cable systems (headends) in the U.S. Of these, about 639 
have more than 15,000 subscribers. Accordingly, the Commission 
estimates that the majority of cable companies and cable systems are 
small.
    758. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,'' which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' For purposes of the Telecom Act Standard, the 
Commission determined that a cable system operator that serves fewer 
than 498,000 subscribers, either directly or through affiliates, will 
meet the definition of a small cable operator. Based on industry data, 
only six cable system operators have more than 498,000 subscribers. 
Accordingly, the Commission estimates that the majority of cable system 
operators are small under this size standard. We note however, that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Therefore, we are unable at this time to 
estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
7. Other
    759. Electric Power Generators, Transmitters, and Distributors. The 
U.S. Census Bureau defines the utilities sector industry as comprised 
of ``establishments, primarily engaged in generating, transmitting, 
and/or distributing electric power. Establishments in this industry 
group may perform one or more of the following activities: (1) operate 
generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation 
facility to the distribution system; and (3) operate distribution 
systems that convey electric power received from the generation 
facility or the transmission system to the final consumer.'' This 
industry group is categorized based on fuel source and includes 
Hydroelectric Power Generation, Fossil Fuel Electric Power Generation, 
Nuclear Electric Power Generation, Solar Electric Power Generation, 
Wind Electric Power Generation, Geothermal Electric Power Generation, 
Biomass Electric Power Generation, Other Electric Power Generation, 
Electric Bulk Power Transmission and Control and Electric Power 
Distribution.

[[Page 45551]]

    760. The SBA has established a small business size standard for 
each of these groups based on the number of employees which ranges from 
having fewer than 250 employees to having fewer than 1,000 employees. 
U.S. Census Bureau data for 2017 indicate that for the Electric Power 
Generation, Transmission and Distribution industry there were 1,693 
firms that operated in this industry for the entire year. Of this 
number, 1,552 firms had less than 250 employees. Based on this data and 
the associated SBA size standards, the majority of firms in this 
industry can be considered small entities.
    761. All Other Information Services. This industry comprises 
establishments primarily engaged in providing other information 
services (except news syndicates, libraries, archives, internet 
publishing and broadcasting, and web search portals). The SBA small 
business size standard for this industry classifies firms with annual 
receipts of $30 million or less as small. U.S. Census Bureau data for 
2017 show that there were 704 firms in this industry that operated for 
the entire year. Of those firms, 556 had revenue of less than $25 
million. Consequently, we estimate that the majority of firms in this 
industry are small entities.
    762. Internet Service Providers (Non-Broadband). Internet access 
service providers using client-supplied telecommunications connections 
(e.g., dial-up ISPs) as well as VoIP service providers using client-
supplied telecommunications connections fall in the industry 
classification of All Other Telecommunications. The SBA small business 
size standard for this industry classifies firms with annual receipts 
of $35 million or less as small. For this industry, U.S. Census Bureau 
data for 2017 show that there were 1,079 firms in this industry that 
operated for the entire year. Of those firms, 1,039 had revenue of less 
than $25 million. Consequently, under the SBA size standard a majority 
of firms in this industry can be considered small.

E. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements for Small Entities

    763. Reclassifying broadband as a Title II service may lead to some 
increase in compliance costs for small entities, however we find that 
these compliance costs are likely to be quite small. The Order 
reimposes the text of the transparency rule from 2015, and clarifies 
and adopts certain changes to the transparency rule that may impact 
small entities. We reinstate rules that prohibit BIAS providers from 
blocking or throttling the information transmitted over their networks 
or engaging in paid or affiliated prioritization arrangements, and 
reinstate a general conduct standard that prohibits practices that 
cause unreasonable interference or unreasonable disadvantage to 
consumers or edge providers. We modify the transparency rule by 
reversing the changes made under the RIF Order, restoring the 
requirements to disclose certain network practices and performance 
characteristics eliminated by the RIF Order, and adopting changes to 
the means of disclosure, including adopting a direct notification 
requirement. Below, we summarize the recordkeeping and reporting 
obligations of the Order.
    764. First, we describe the specific commercial terms, network 
performance characteristics, and network practices providers must 
disclose to ensure compliance with the transparency rule. For example, 
to fully satisfy their duty to disclose network performance 
characteristics, providers must now disclose their zero rating 
practices. Specifically, BIAS providers must report any practice that 
exempts particular edge services, devices, applications, and content 
(edge products) from an end user's usage allowance or data cap. We 
reinstate the enhanced performance characteristics disclosures 
eliminated in 2017 to require BIAS providers to disclose packet loss 
and to require that performance characteristics be reported with 
greater geographic granularity and be measured in terms of average 
performance over a reasonable period of time and during times of peak 
usage. We temporarily (with the potential to become permanent) exempt 
BIAS providers that have 100,000 or fewer broadband subscribers as per 
their most recent FCC Form 477, aggregated over all affiliates of the 
provider, from these latter requirements.
    765. Second, we require that providers make all necessary 
disclosures on their own publicly-available websites. We no longer 
permit direct disclosure to the Commission, as allowed under the RIF 
Order. Additionally, we require that all disclosures made pursuant to 
the transparency rule be made in machine-readable format. By ``machine 
readable,'' we mean providing ``data in a format that can be easily 
processed by a computer without human intervention while ensuring no 
semantic meaning is lost.''
    766. Third, we re-implement the requirement for BIAS providers to 
directly notify end users if their particular use of a network will 
trigger a network practice, based on a user's demand during more than 
the period of congestion, that is likely to have a significant impact 
on the end user's use of the service. The purpose of such notification 
is to provide the affected end users with sufficient information and 
time to consider adjusting their usage to avoid application of the 
practice. Recognizing the extra burden this requirement creates, we 
provide a temporary exemption, with the potential to become permanent, 
for providers with 100,000 or fewer subscribers that will be 
promulgated by the Consumer & Governmental Affairs Bureau. We discuss 
this exemption and other steps to minimize compliance costs in section 
F, below.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    767. The RFA requires an agency to provide ``a description of the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . . including a statement of the factual, policy, 
and legal reasons for selecting the alternative adopted in the final 
rule and why each one of the other significant alternatives to the rule 
considered by the agency which affect the impact on small entities was 
rejected.''
    768. We have considered the factors for reinstating the obligations 
above and modifying the transparency rule subsequent to receiving 
substantive comments from the public and potentially affected entities. 
The Commission has considered the economic impact on small entities, as 
identified in comments filed in response to the 2023 Open Internet NPRM 
and its IRFA in reaching its final conclusions and taking action in 
this proceeding.
    769. We considered, for example, whether to fully reimplement the 
transparency requirements from the 2015 Open Internet Order and adopted 
a temporary (with the potential to become permanent) exemption for 
providers with 100,000 or fewer subscribers from the compliance with 
certain reporting requirements regarding performance characteristics to 
minimize burdens for providers. Furthermore, in response to concerns 
expressed by some commenters, we provided a temporary (with the 
potential to become permanent) exemption from compliance with the 
direct notification requirement for providers with 100,000 or fewer 
subscribers, as such providers are less likely to already have in place 
the tools and mechanisms needed to allow customers to track usage or 
provide automated direct notifications. This exemption, which will have 
the effect of

[[Page 45552]]

benefitting many small providers, provides regulatory flexibility while 
maintaining the Commission's goals and is similar to exemptions we have 
adopted in other contexts. For example, for the broadband labels 
proceeding, we created a longer implementation period for certain 
providers.
    770. As we did in 2015, we determined that a flat ban on paid 
prioritization has advantages over alternative approaches, particularly 
in relieving small edge providers, innovators, and consumers of the 
burden of detecting and challenging instances of harmful paid 
prioritization. In developing our rule, we specifically noted the 
concerns commenters expressed over the harms that would particularly 
befall small edge providers should they be required to pay for priority 
access. We believe that the adoption of a bright-line rule prohibiting 
paid prioritization will likely lower compliance costs for small and 
other entities because they provide greater certainty to market 
participants. Also, costs for compliance will be lower compared to the 
current regulatory framework where harmful conduct would be subject to 
ex post, case-by-case enforcement by antitrust and consumer protection 
authorities. This could lead to lengthy enforcement actions and higher 
compliance costs for BIAS providers. In our judgment, enforcement by an 
expert agency will achieve timelier and more consistent outcomes and 
reduce the costs of uncertainty resulting in significant public 
interest benefits.
    771. In reimplementing our no-unreasonable interference/
disadvantage standard, we were mindful of how a rule that operates on a 
case-by-case basis may be more difficult for smaller providers. As 
such, we attempted to provide an extensive list of factors that we will 
consider in our analysis. Moreover, in consideration of the concerns 
raised by certain commenters that this rule will create difficulty for 
smaller providers, we implemented an advisory opinion process whereby 
providers may seek specific guidance from the Commission.
    772. We continue to find that our existing informal complaint rule 
offers an accessible and effective mechanism for parties--including 
consumers and small businesses with limited resources--to report 
possible noncompliance with our open internet rules without being 
subject to burdensome evidentiary or pleading requirements. In 
formulating our open internet formal complaint rules, we noted NFIB's 
request to ``make [our] regulations as concise and simple as 
possible,'' and opted to maintain our existing formal complaint rules 
codified at Sec. Sec.  1.720 through 1.740 to streamline the complaint 
process, which should accord with NFIB's request.
    773. Upon finding that BIAS is best classified under the statute as 
a telecommunications service under Title II, we broadly forbear, to the 
full extent permitted by our authority under section 10 of the Act, 
from applying provisions of Title II of the Act and implementing 
Commission rules that would apply to BIAS by virtue of its 
classification as a Title II service--including from all ex ante direct 
rate regulation--to minimize the burdens an all BIAS providers, 
including small BIAS providers. For provisions of Title II that the 
Commission finds it is not in the public interest from which to forbear 
with respect to BIAS providers, we take additional actions to minimize 
the effects on small providers. For example, in applying section 222 to 
BIAS, we waive application of all of the Commission's rules 
implementing section 222 to BIAS. Likewise, to address the potential 
impact on BIAS providers that will be subject to section 214 of the 
Act, we grant blanket section 214 authority for the provision of BIAS 
to any entity currently providing or seeking to provide BIAS--except 
those specific identified entities whose application for international 
section 214 authority was previously denied or whose domestic and 
international section 214 authority was previously revoked and their 
current and future affiliates and subsidiaries. We also waive the 
current rules implementing section 214(a)-(d) of the Act with respect 
to BIAS to the extent they are otherwise applicable. Additionally, we 
find that foreign ownership in excess of the statutory benchmarks in 
common carrier wireless licensees that are providing only BIAS is in 
the public interest under section 310(b)(3) when such foreign ownership 
is held in the licensee through a U.S.-organized entity that does not 
control the licensee, and under section 310(b)(4) of the Act, and we 
waive the requirements to request a declaratory ruling under Sec. Sec.  
1.5000 through 1.5004 of the Commission's rules pending adoption of any 
rules for BIAS. The Commission expects to release a FNPRM at a future 
time to examine whether any section 214 rules specifically tailored to 
BIAS, including for small providers, are warranted. Consistent with our 
tailored regulatory approach, we also considered the impact of section 
214 exit certification requirements and find that it is prudent and in 
the public interest to forbear from requiring providers to obtain 
approval from the Commission to discontinue, reduce, or impair service 
to a community. We expect that this will minimize burdens on small 
entities.
    774. We also considered the benefits certain Title II provisions 
offer to providers, particularly BIAS-only providers, which are 
frequently small providers, in making its forbearance determination. 
For example, the Commission did not find the standards for forbearance 
to be met with respect to sections 224, 253, and 332, which all assist 
providers with network deployment. Section 224 guarantees pole 
attachment rights to all BIAS providers, including BIAS-only providers, 
who are frequently small entities. Section 253 permits BIAS-only 
providers to seek the Commission's intervention when State or local 
regulations interfere with their network deployment. Meanwhile, section 
332 guarantees that State and local governments act on requests by 
wireless providers, including BIAS-only providers, to place, construct, 
or modify personal wireless service facilities within a reasonable 
period of time.

G. Report to Congress

    775. The Commission will send a copy of the Declaratory Ruling, 
Order, Report and Order, and Order on Reconsideration, including the 
FRFA, in a report to Congress pursuant to the Congressional Review Act. 
In addition, the Commission will send a copy of the Declaratory Ruling, 
Order, Report and Order, and Order on Reconsideration, including the 
FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration and FRFA (or summaries thereof) will also be published 
in the Federal Register.

IX. Ordering Clauses

    776. Accordingly, it is ordered, pursuant to the authority 
contained in sections 1, 2, 3, 4, 10, 13, 201, 202, 206, 207, 208, 209, 
214, 215, 216, 217, 218, 219, 220, 230, 251, 254, 256, 257, 301, 303, 
304, 307, 309, 310, 312, 316, 332, 403, 501, 503, and 602 of the 
Communications Act of 1934, as amended, and section 706 of the 
Telecommunications Act of 1996, as amended, 47 U.S.C 151, 152, 153, 
154(i)-(j), 160, 163, 201, 202, 206, 207, 208, 209, 214, 215, 216, 217, 
218, 219, 220, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 310, 
312, 316, 332, 403, 501, 503, 522, 1302, that the Declaratory Ruling, 
Order, Report and Order, and Order on Reconsideration is adopted and 
that parts 8 and 20 of the

[[Page 45553]]

Commission's Rules, 47 CFR parts 8 and 20, are amended.
    777. It is further ordered, pursuant to sections 1, 4(i), 4(j), 
214, 215, 218, and 403 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(j), 214, 215, 218, 403, and Sec. Sec.  1.1, 
2.903, 63.12, 63.18, and 63.21 of the Commission's rules, 47 CFR 1.1, 
2.903, 63.12, 63.18, and 63.21, that blanket section 214 authority for 
the provision of broadband internet access service is granted to any 
entity currently providing or seeking to provide broadband internet 
access service except for China Mobile International (USA) Inc., China 
Telecom (Americas) Corporation, China Unicom (Americas) Operations 
Limited, Pacific Networks Corp., and ComNet (USA) LLC and their current 
and future affiliates and subsidiaries.
    778. It is further ordered, pursuant to sections 1, 4(i), 4(j), 
214, 215, 218, and 403 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(j), 214, 215, 218, 403, and Sec. Sec.  1.1, 
2.903, 63.12, 63.18, and 63.21 of the Commission's rules, 47 CFR 1.1, 
2.903, 63.12, 63.18, and 63.21, that China Mobile International (USA) 
Inc., China Telecom (Americas) Corporation, China Unicom (Americas) 
Operations Limited, Pacific Networks Corp., and ComNet (USA) LLC, and 
their affiliates and subsidiaries as defined pursuant to 47 CFR 
2.903(c), shall discontinue any and all provision of BIAS no later than 
sixty (60) days after the effective date of the Order as established in 
the Federal Register.
    779. It is further ordered, pursuant to sections 1, 2, 4(i), 4(j), 
160, 201-205, 211, 214, and 303(r) of the Communications Act of 1934, 
as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 160, 201-205, 211, 214, 
303(r); sections 1-6 of the Cable Landing License Act of 1921, 42 Stat. 
8, 47 U.S.C. 34-39; section 402(b)(2)(B), (c) of the Telecommunications 
Act of 1996, Public Law 104-104, 110 Stat. 56, 47 U.S.C. 204 note, 208 
note, 214 note; and Sec.  1.3 of the Commission's rules, 47 CFR 1.3, 
that Sec. Sec.  1.763, 43.82, 63.03, 63.04, 63.09 through 63.14, 63.17, 
63.18, 63.20 through 63.25, 63.50 through 63.53, 63.65, 63.66, 63.100, 
63.701, and 63.702 of the Commission's rules, 47 CFR 1.763, 43.82, 
63.03, 63.04, 63.09 through 63.14, 63.17, 63.18, 63.20 through 63.25, 
63.50 through 63.53, 63.65, 63.66, 63.100, 63.701, and 63.702, are 
waived as applied to the provision of broadband internet access 
service.
    780. It is further ordered that a copy of the Declaratory Ruling, 
Order, Report and Order, and Order on Reconsideration shall be sent by 
Certified Mail, Return Receipt Requested, and by regular first-class 
mail to the addresses of record of China Mobile International (USA) 
Inc., China Telecom (Americas) Corporation, China Unicom (Americas) 
Operations Limited, Pacific Networks Corp., and ComNet (USA) LLC, and 
shall be posted in the Office of the Secretary pursuant to section 413 
of the Communications Act of 1934, as amended, 47 U.S.C. 413.
    781. It is further ordered, pursuant to sections 1, 2, 4(i), 4(j), 
10, 303(r), 309, 310, and 403 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 160, 303(r), 309, 310, 
403, and Sec. Sec.  1.3 and 1.5000 through 1.5004 of the Commission's 
rules, 47 CFR 1.3, 1.5000 through 1.5004, that the requirements to 
request a declaratory ruling pursuant to section 310(b)(3)-(4) of the 
Act and Sec. Sec.  1.5000 through 1.5004 of the Commission's rules are 
waived for common carrier wireless licensees that are providing only 
broadband internet access service pending the adoption of any rules for 
broadband internet access service.
    782. It is further ordered, pursuant to sections 1, 2, 4(i), 4(j), 
222, and 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154(i), 154(j), 222, 303(r), and Sec.  1.3 of the 
Commission's rules, 47 CFR 1.3, that part 64, subpart U, of the 
Commission's rules is waived as applied to the provision of broadband 
internet access service.
    783. It is further ordered that the Declaratory Ruling, Order, 
Report and Order, and Order on Reconsideration shall be effective 60 
days after publication in the Federal Register, except that those 
amendments which contain new or modified information collection 
requirements will not become effective until after the Office of 
Management and Budget completes any review that the Wireline 
Competition Bureau determines is required under the Paperwork Reduction 
Act. The Commission directs the Wireline Competition Bureau to announce 
the effective date for those amendments by subsequent Public Notice. It 
is our intention in adopting the Declaratory Ruling, Order, Report and 
Order, and Order on Reconsideration that, if any provision of the 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration, or the application thereof to any person or 
circumstance, is held to be unlawful, the remaining portions of such 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration not be deemed unlawful, and the application of such 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration to other person or circumstances, shall remain in 
effect to the fullest extent permitted by law.
    784. It is further ordered that the Office of the Secretary, 
Reference Information Center shall send a copy of the Declaratory 
Ruling, Order, Report and Order, and Order on Reconsideration, 
including the Final Regulatory Flexibility Analysis and Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.
    785. It is further ordered that the Office of the Managing 
Director, Performance and Program Management, shall send a copy of the 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).
    786. It is ordered, that, pursuant to 47 CFR 1.4(b)(1), the period 
for filing petitions for reconsideration or petitions for judicial 
review of the Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration will commence on the date that a summary of the 
Declaratory Ruling, Order, Report and Order, and Order on 
Reconsideration is published in the Federal Register.
    787. It is further ordered that the Petitions for Reconsideration 
of the Restoring Internet Freedom Remand Order (86 FR 994 (Jan. 7, 
2021)) are granted to the extent described herein and otherwise 
dismissed as moot.

List of Subjects for 47 CFR Parts 8 and 20

    Common carriers, Communications, Communications common carriers, 
Radio, Reporting and recordkeeping requirements, Satellites, 
Telecommunications.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

    For the reasons set out in this document, the Federal 
Communications Commission amends 47 CFR chapter I as follows:

0
1. Under the authority of 47 U.S.C 151, 152, 153, 154(i)-(j), 160, 163, 
201, 202, 206, 207, 208, 209, 214, 215, 216, 217, 218, 219, 220, 230, 
251, 254, 256, 257, 301, 303, 304, 307, 309, 310, 312, 316, 332, 403, 
501, 503, 522, 1302, revise the heading for subchapter A to read as 
follows:

[[Page 45554]]

Subchapter A--Internet Openness

PART 8--SAFEGUARDING AND SECURING THE OPEN INTERNET

0
2. The authority citation for part 8 is revised to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 163, 201, 202, 206, 
207, 208, 209, 216, 217, 257, 301, 302a, 303, 304, 307, 309, 312, 
316, 332, 403, 501, 503, 522, 1302, 1753.


0
3. Revise the heading for part 8 to read as set forth above.


Sec.  8.1  [Redesignated as Sec.  8.2]

0
4. Redesignate Sec.  8.1 as Sec.  8.2.

0
5. Add new Sec.  8.1 to read as follows:


Sec.  8.1  Definitions.

    (a) [Reserved]
    (b) Broadband Internet access service. 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.
    (c) Edge provider. Any individual or entity that provides any 
content, application, or service over the internet, and any individual 
or entity that provides a device used for accessing any content, 
application, or service over the internet.
    (d) End user. Any individual or entity that uses a broadband 
internet access service.
    (e) Reasonable network management. 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 internet access service.


Sec.  8.2  [Amended]

0
6. Amend newly redesignated Sec.  8.2 by removing paragraph (c).

0
7. Delayed indefinitely, further amend newly redesignated Sec.  8.2 by:
0
a. Revising the introductory text of paragraph (a);
0
b. Removing paragraph (a)(7); and
0
c. Revising paragraph (b).
    The revisions read as follows:


Sec.  8.2  Transparency.

    (a) A person engaged in the provision of broadband internet access 
service shall publicly disclose accurate information regarding the 
network management practices, performance, and commercial terms of its 
broadband internet access services sufficient for consumers to make 
informed choices regarding use of such services and for content, 
application, service, and device providers to develop, market, and 
maintain internet offerings. Disclosures made under this paragraph (a) 
must be displayed on the broadband internet access service provider's 
website in a machine-readable format.
* * * * *
    (b) Compliance with paragraphs (a)(1), (2), and (4) through (6) of 
this section for providers with 100,000 or fewer subscriber lines is 
required as of October 10, 2024, and for all other providers is 
required as of April 10, 2024, except that compliance with the 
requirement in paragraph (a)(2) of this section to make labels 
accessible in online account portals will not be required for all 
providers until October 10, 2024. Compliance with paragraph (a)(3) of 
this section is required for all providers as of October 10, 2024.

0
8. Add Sec.  8.3 to read as follows:


Sec.  8.3  Conduct-based rules.

    (a) No blocking. A person engaged in the provision of broadband 
internet access service, insofar as such person is so engaged, shall 
not block lawful content, applications, services, or non-harmful 
devices, subject to reasonable network management.
    (b) No throttling. A person engaged in the provision of broadband 
internet access service, insofar as such person is so engaged, shall 
not impair or degrade lawful internet traffic on the basis of internet 
content, application, or service, or use of a non-harmful device, 
subject to reasonable network management.
    (c) No paid prioritization. (1) A person engaged in the provision 
of broadband internet access service, insofar as such person is so 
engaged, shall not engage in paid prioritization. ``Paid 
prioritization'' refers to the management of a broadband provider's 
network to directly or indirectly favor some traffic over other 
traffic, including through use of techniques such as traffic shaping, 
prioritization, resource reservation, or other forms of preferential 
traffic management, either:
    (i) In exchange for consideration (monetary or otherwise) from a 
third party; or
    (ii) To benefit an affiliated entity.
    (2) The Commission may waive the ban on paid prioritization only if 
the petitioner demonstrates that the practice would provide some 
significant public interest benefit and would not harm the open nature 
of the internet.
    (d) No unreasonable interference or unreasonable disadvantage 
standard for internet conduct. (1) Any person engaged in the provision 
of broadband internet access service, insofar as such person is so 
engaged, shall not unreasonably interfere with or unreasonably 
disadvantage:
    (i) End users' ability to select, access, and use broadband 
internet access service or the lawful internet content, applications, 
services, or devices of their choice; or
    (ii) Edge providers' ability to make lawful content, applications, 
services, or devices available to end users.
    (2) Reasonable network management shall not be considered a 
violation of this paragraph (d).
    (e) Effect on other obligations or authorizations. Nothing in this 
part supersedes any obligation or authorization a provider of broadband 
internet access service may have to address the needs of emergency 
communications or law enforcement, public safety, or national security 
authorities, consistent with or as permitted by applicable law, or 
limits the provider's ability to do so. Nothing in this part prohibits 
reasonable efforts by a provider of broadband internet access service 
to address copyright infringement or other unlawful activity.

0
9. Add Sec.  8.6 to read as follows:


Sec.  8.6  Advisory opinions.

    (a) Procedures. (1) Any entity that is subject to the Commission's 
open internet rules in this part may request an advisory opinion from 
the Enforcement Bureau regarding the permissibility of its proposed 
policies and practices relating to broadband internet access service. 
Requests for advisory opinions may be filed via the Commission's 
website or with the Office of the Secretary and must be copied to the 
Chief of the Enforcement Bureau and the Chief of the Investigations and 
Hearings Division of the Enforcement Bureau.
    (2) The Enforcement Bureau may, in its discretion, determine 
whether to issue an advisory opinion in response to a particular 
request or group of requests and will inform each requesting entity, in 
writing, whether the Bureau plans to issue an advisory opinion 
regarding the matter in question.
    (3) Requests for advisory opinions must relate to a proposed policy 
or practice that the requesting party

[[Page 45555]]

intends to pursue. The Enforcement Bureau will not respond to requests 
for opinions that relate to ongoing or prior conduct, and the Bureau 
may initiate an enforcement investigation to determine whether such 
conduct violates the open internet rules in this part. Additionally, 
the Bureau will not respond to requests if the same or substantially 
the same conduct is the subject of a current Government investigation 
or proceeding, including any ongoing litigation or open rulemaking at 
the Commission.
    (4) Requests for advisory opinions must be accompanied by all 
material information sufficient for Enforcement Bureau staff to make a 
determination on the policy or practice for which review is requested. 
Requesters must certify that factual representations made to the Bureau 
are truthful and accurate, and that they have not intentionally omitted 
any information from the request. A request for an advisory opinion 
that is submitted by a business entity or an organization must be 
executed by an individual who is authorized to act on behalf of that 
entity or organization.
    (5) Enforcement Bureau staff will have discretion to ask parties 
requesting advisory opinions, as well as other parties that may have 
information relevant to the request or that may be impacted by the 
proposed conduct, for additional information that the staff deems 
necessary to respond to the request. Such additional information, if 
furnished orally or during an in-person conference with Bureau staff, 
shall be promptly confirmed in writing. Parties are not obligated to 
respond to staff inquiries related to advisory opinions. If a 
requesting party fails to respond to a staff inquiry, then the Bureau 
may dismiss that party's request for an advisory opinion. If a party 
voluntarily responds to a staff inquiry for additional information, 
then it must do so by a deadline to be specified by Bureau staff. 
Advisory opinions will expressly state that they rely on the 
representations made by the requesting party, and that they are 
premised on the specific facts and representations in the request and 
any supplemental submissions.
    (b) Response. After review of a request submitted under this 
section, the Enforcement Bureau will:
    (1) Issue an advisory opinion that will state the Bureau's present 
enforcement intention with respect to whether or not the proposed 
policy or practice detailed in the request complies with the 
Commission's open internet rules in this part;
    (2) Issue a written statement declining to respond to the request; 
or
    (3) Take such other position or action as it considers appropriate. 
An advisory opinion states only the enforcement intention of the 
Enforcement Bureau as of the date of the opinion, and it is not binding 
on any party. Advisory opinions will be issued without prejudice to the 
Enforcement Bureau or the Commission to reconsider the questions 
involved, or to rescind or revoke the opinion. Advisory opinions will 
not be subject to appeal or further review.
    (c) Enforcement effect. The Enforcement Bureau will have discretion 
to indicate the Bureau's lack of enforcement intent in an advisory 
opinion based on the facts, representations, and warranties made by the 
requesting party. The requesting party may rely on the opinion only to 
the extent that the request fully and accurately contains all the 
material facts and representations necessary to issuance of the opinion 
and the situation conforms to the situation described in the request 
for opinion. The Bureau will not bring an enforcement action against a 
requesting party with respect to any action taken in good faith 
reliance upon an advisory opinion if all of the relevant facts were 
fully, completely, and accurately presented to the Bureau, and where 
such action was promptly discontinued upon notification of rescission 
or revocation of the Commission's or Bureau's approval.
    (d) Public disclosure. The Enforcement Bureau will make advisory 
opinions available to the public on the Commission's website. The 
Bureau will also publish the initial request for guidance and any 
associated materials. Parties soliciting advisory opinions may request 
confidential treatment of information submitted in connection with a 
request for an advisory opinion pursuant to Sec.  0.459 of this 
chapter.
    (e) Withdrawal of request. Any requesting party may withdraw a 
request for review at any time prior to receipt of notice that the 
Enforcement Bureau intends to issue an adverse opinion, or the issuance 
of an opinion. The Enforcement Bureau remains free, however, to submit 
comments to such requesting party as it deems appropriate. Failure to 
take action after receipt of documents or information, whether 
submitted pursuant to this procedure or otherwise, does not in any way 
limit or stop the Bureau from taking such action at such time 
thereafter as it deems appropriate. The Bureau reserves the right to 
retain documents submitted to it under this procedure or otherwise and 
to use them for all governmental purposes.

PART 20--COMMERCIAL MOBILE SERVICES

0
10. The authority citation for part 20 continues to read as follows:

    Authority:  47 U.S.C. 151, 152(a), 154(i), 155, 157, 160, 201, 
214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 
309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, and 615c, unless 
otherwise noted.


0
11. Amend Sec.  20.3 by:
0
a. Revising the definitions of ``Commercial mobile radio service'';
0
b. Removing the definition of ``Interconnected Service'' and adding the 
definition for ``Interconnected service'' in its place; and
0
c. Removing the definition for ``Public Switched Network'' and adding 
the definition for ``Public switched network'' in its place.
    The revision and additions read as follows:


Sec.  20.3  Definitions.

* * * * *
    Commercial mobile radio service. A mobile service that is:
    (1)(i) Provided for profit, i.e., with the intent of receiving 
compensation or monetary gain;
    (ii) An interconnected service; and
    (iii) Available to the public, or to such classes of eligible users 
as to be effectively available to a substantial portion of the public; 
or
    (2) The functional equivalent of such a mobile service described in 
paragraph (1) of this definition, including a mobile broadband internet 
access service as defined in Sec.  8.1 of this chapter.
    (3) A variety of factors may be evaluated to make a determination 
whether the mobile service in question is the functional equivalent of 
a commercial mobile radio service, including: Consumer demand for the 
service to determine whether the service is closely substitutable for a 
commercial mobile radio service; whether changes in price for the 
service under examination, or for the comparable commercial mobile 
radio service, would prompt customers to change from one service to the 
other; and market research information identifying the targeted market 
for the service under review.
    (4) Unlicensed radio frequency devices under part 15 of this 
chapter are excluded from this definition of commercial mobile radio 
service.
* * * * *
    Interconnected service. A service:
    (1) That is interconnected with the public switched network, or 
interconnected with the public switched network through an 
interconnected service provider, that gives subscribers

[[Page 45556]]

the capability to communicate to or receive communication from other 
users on the public switched network; or
    (2) For which a request for such interconnection is pending 
pursuant to section 332(c)(1)(B) of the Communications Act, 47 U.S.C. 
332(c)(1)(B). A mobile service offers interconnected service even if 
the service allows subscribers to access the public switched network 
only during specified hours of the day, or if the service provides 
general access to points on the public switched network but also 
restricts access in certain limited ways. Interconnected service does 
not include any interface between a licensee's facilities and the 
public switched network exclusively for a licensee's internal control 
purposes.
* * * * *
    Public switched network. The network that includes any common 
carrier switched network, whether by wire or radio, including local 
exchange carriers, interexchange carriers, and mobile service 
providers, that uses the North American Numbering Plan, or public IP 
addresses, in connection with the provision of switched services.
* * * * *
[FR Doc. 2024-10674 Filed 5-21-24; 8:45 am]
 BILLING CODE 6712-01-P