Broadband

On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit struck down the FCC’s Safeguarding and Securing the Open Internet Order, which had attempted to reclassify broadband access as a regulated “telecommunications service” and adopted net neutrality regulations.  As we previously covered here, a different panel of the Sixth Circuit had previously stayed that Order pending outcome of the litigation against it.   The decision means that the FCC will not generally have a direct role in regulating at-home or mobile broadband service, absent action by Congress.

The three-judge panel held that broadband internet service providers offer only an “information service” as that key term is defined by the Communications Act, “and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service’ provision” under Title II.  In a related finding, the Sixth Circuit found that mobile broadband is a “private” mobile offering and thus it too cannot be regulated as a common carrier offering such that it can “then similarly impose net-neutrality restrictions on those services.”Continue Reading Sixth Circuit Strikes Down FCC Net Neutrality Rules

Updated July 15, 2024.  Originally posted July 11, 2024.

On July 8, 2024, the Federal Communications Commission (FCC) and a group of Internet Service Providers, represented by national and regional trade associations, filed supplemental briefs with the U.S. Court of Appeals for the Sixth Circuit in In re MCP NO. 185. On July 15, the Sixth Circuit granted an administrative stay until August 15, 2024 “[t]o provide sufficient opportunity to consider the merits of the motion.”

The Sixth Circuit is considering challenges to the FCC’s Safeguarding and Securing the Open Internet Order (Open Internet Order), which reclassified broadband Internet access service as a telecommunications service under Title II of the Communications Act of 1934, as amended.  The Order was scheduled to take effect on July 22, 2024, but the ISP representatives asked for a stay.  The Sixth Circuit requested that the parties address the implications of the Supreme Court’s decision to overturn the Chevron Doctrine in Loper Bright Enterprises v. Raimondo for the petitioners’ motion to stay enforcement.Continue Reading Industry Groups and FCC File Briefs in Net Neutrality Case Following Loper Bright

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.Continue Reading FCC Shares Draft Open Internet Order Ahead of April Meeting

Last month, the Federal Communications Commission (“FCC”) raised the fixed broadband speed benchmark from 25/3 megabits per second (“Mbps”) to 100/20 Mbps and concluded that “advanced telecommunications capability is not being deployed to all Americans in a reasonable and timely fashion.” As a consequence, the FCC concluded that “section 706 [of the Telecommunications Act of 1996] requires [it] to ‘take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.’”Continue Reading FCC Raises Speed Benchmark for Fixed Broadband Services

On November 1, the Federal Communications Commission (“FCC”) released a Notice of Inquiry (“NOI”) that will initiate an assessment into the availability and quality of broadband service nationwide.  The assessment, which is required by statute, will rely on information generated by the FCC’s new Broadband Data Collection (“BDC”) to evaluate progress towards broadband universal service goals.  The NOI requests detailed public input on how the FCC should define and evaluate these goals based on the BDC data and other inputs.Continue Reading FCC Releases Notice of Inquiry into Broadband Speed Benchmark and Related Issues

Unless Congress reaches an agreement to keep the lights on, the U.S. government appears headed for a shutdown at midnight on October 1.  As the deadline looms, stakeholders should not let the legislative jockeying overshadow another consequence of a funding lapse: regulatory delay.  Under normal circumstances, federal agencies publish thousands of rules per year, covering agriculture, health care, transportation, financial services, and a host of other issues.  In a shutdown, however, most agency proceedings to develop and issue these regulations would grind to a halt, and a prolonged funding gap would lead to uncertainty for stakeholders, particularly as the 2024 elections approach.  Another consequence is that more regulations could become vulnerable to congressional disapproval under the Congressional Review Act (CRA).Continue Reading Looming Shutdown Elevates Congressional Review Act Threat for New Regulations

In remarks yesterday at the National Press Club, Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel announced that she will ask her fellow Commissioners to begin a rulemaking to re-assert the FCC’s authority over broadband and at the same time adopt new net neutrality rules.  With Democrats now holding a majority of the FCC’s five seats, it is widely expected that the agency will formally vote to begin the process of adopting these new rules at its next monthly meeting on October 19.  The Chairwoman’s announcement represents the latest phase in a longstanding public policy debate over the respective rights and responsibilities of Internet Service Providers (ISPs) that provide mobile and fixed/residential broadband to the public.   Continue Reading FCC Chair Announces New Plans for Broadband Oversight and Net Neutrality

On August 25, 2023, the Federal Communications Commission (“FCC”) adopted an Order on Reconsideration (“Reconsideration Order”) that addressed three petitions requesting that the agency reconsider its broadband label requirements.  Among other things, the FCC affirmed its requirement that broadband Internet service providers (“ISPs”) display on the label all monthly fees with respect to the service.Continue Reading FCC Releases Reconsideration Order that Affirms and Clarifies Broadband Label Requirements

On May 25, 2023, the National Telecommunications and Information Administration (NTIA) announced that, on behalf of the U.S. government, it filed responses to the European Commission’s public consultation on The Future of the Electronic Communications Sector and Its Infrastructure.  The consultation explores the issue of how to best promote connectivity and ensure reliable broadband access throughout the EU, as well as the kinds of infrastructure and investments needed to support the evolving telecommunications landscape.  Among other things, the consultation seeks feedback on whether content and application providers (also referred to as Over-The-Top (OTT) services in the U.S.) should make mandated “fair share” payments to telecom operators to subsidize current and future connectivity needs.  NTIA’s filing comes amid an ongoing debate surrounding the future of the U.S. Universal Service Fund (USF) and whether and how to expand its contribution base.Continue Reading Biden Administration Weighs in on European Commission’s “Fair Share” Telecoms Consultation

Yesterday, the National Telecommunications and Information Administration (NTIA) issued a Request for Comment that seeks input on a “National Spectrum Strategy,” which would include a plan to study federal spectrum usage to identify spectrum that could be reallocated or repurposed to commercial or shared federal/commercial use. This National Spectrum Strategy also would include a process for identifying the spectrum bands best suited for repurposing (a “Spectrum Pipeline”).  NTIA seeks input in creating a Spectrum Pipeline for the next decade, with the goal of identifying at least 1,500 megahertz of spectrum to study for potential repurposing to meet the future requirements of both commercial and federal users.  Continue Reading NTIA Seeks Public Comment on the Development of a National Spectrum Strategy and Spectrum-Sharing “Pipeline”