What ISPs Need to Know About the FCC’s Title II / Open Internet Order

On May 7, 2024, the FCC issued a Declaratory Ruling that reclassifies “broadband Internet access service” (BIAS) as a “telecommunications service,” thereby bringing it under the FCC’s jurisdiction per Title II of the Communications Act. Accompanying this ruling was an Order that exempts BIAS from most Title II regulations and a Report and Order that introduces a set of Open Internet rules for BIAS providers. (For simplicity, this blog will refer to these actions collectively as the “Order.”)

While mainstream media has largely focused on the net neutrality aspects of the Order—prompted by the FCC’s goal to enforce Open Internet rules—this post will explore other significant implications of this latest reclassification of broadband regulation. We will delve into net neutrality and the Order’s future in upcoming posts.

The Order’s significance lies not in its immediate effects on ISPs but in the long-term structural shift it signifies. Should it withstand legal challenges, the Order will grant the FCC jurisdictional authority over the primary communications medium of our era.

Scope of Reclassification: “Broadband Internet Access Service.” The Order defines BIAS 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.”

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

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