On April 4, 2024, Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel released a draft of the agency’s long-anticipated Safeguarding and Securing the Open Internet Order (Open Internet Order), which would reclassify broadband Internet access service as a telecommunications service under Title II of the Communications Act of 1934, as amended.  The FCC is expected to consider and vote on the draft at its next Open Commission Meeting scheduled for April 25, 2024.  The FCC is expected to adopt the Open Internet Order now that Democrats hold a 3-2 majority at the agency.

As we have described previously, this development represents the latest phase in a longstanding public policy debate over the statutory classification of broadband as well as the rights and responsibilities of Internet Service Providers (ISPs) that provide mobile and fixed/residential broadband to the public.  The Open Internet Order explains that the reclassification of broadband under “Title II” authority would “reestablish[] the Commission’s authority to protect consumers and resolve[] the pending challenges to the Commission’s faulty 2017 classification decision.” 

While in the past, policymakers embracing a Title II classification for broadband often did so on the theory that this statutory underpinning was necessary to support a set of robust net neutrality rules, the Open Internet Order explains that the decision is supported by public policy purposes that go beyond such rules.  It describes, for example, broader “critical policy objectives,” including the FCC’s “statutory responsibility to defend communications networks and critical infrastructure against threats to national security and law enforcement.”