Updated March 11, 2019
Access to Broadband Networks: Net Neutrality
The move to place restrictions on the owners of the
rules by requiring internet service providers to publicly
networks that comprise and provide access to the internet,
disclose information about their network management
to ensure equal access and nondiscriminatory treatment, is
practices including blocking, throttling, paid prioritization,
referred to as “net neutrality.” While there is no single
and commercial terms of service; and preempts local and
accepted definition of net neutrality most agree that any
state laws that conflict with this framework.
such definition should include the general principles that
owners of the networks that comprise and provide access to
Selected Policy Issues
the internet should not control how consumers lawfully use
As Congress continues to debate what the appropriate
that network; and should not be able to discriminate against
framework should be for broadband access, some of the
content provider access to that network.
major policy issues focus on: the regulatory classification of
BIAS; the role of the FCC versus the FTC; the impact of
Determining the appropriate framework to ensure an open
paid prioritization; and the role of the states.
internet is central to the debate over broadband access, and
is an issue that the Federal Communications Commission
Regulatory Classification—Title I versus Title II. The
(FCC) has been grappling with for decades. Some
FCC derives its authority to establish its policies and
policymakers contend that more proscriptive regulations,
regulations from the Communications Act. The
such as those contained in the FCC’s 2015 Open Internet
Telecommunications Act of 1996 added the definitions of
Order (2015 Order), are necessary to protect the
information service and telecommunications service to the
marketplace from potential abuses which could threaten the
Communications Act and applied the law to these services
net neutrality concept. Others contend that existing laws
in different ways. Telecommunications service providers
and the current, less restrictive approach, contained in the
must be treated as common carriers under Title II of the act,
FCC’s 2017 Restoring Internet Freedom Order (2017
which grants the FCC broad regulatory powers. Information
Order), provide a more suitable framework. There is also a
service providers are defined under Title I, but may not be
growing consensus that Congress should amend the 1934
regulated as common carriers, and the FCC’s authority over
Communications Act, as amended, (Communications Act)
those services is more circumscribed. There is no provision
to address the debate.
in the current statute defining BIAS, but most agree that
BIAS arguably could be interpreted as a
The FCC 2015 Open Internet Order
telecommunications or an information service. This had led
The FCC in February 2015, adopted the Open Internet
to one of the most contentious issues surrounding the net
Order to establish a regulatory framework to address access
neutrality debate: Under which definition should BIAS fall?
to broadband internet access service (BIAS), that is, the
retail broadband service Americans buy from cable, phone,
The FCC chose, when adopting the 2015 Order, to classify
satellite, and wireless providers. The 2015 Order which
BIAS as a telecommunications service placing it under the
applies to both mobile as well as fixed BIAS included
extensive regulatory framework, originally established to
provisions that reclassified BIAS as a telecommunications
regulate monopoly voice telephone service, of Title II. On
service under Title II of the Communications Act; placed a
the other hand, the FCC, when it adopted the 2017 Order,
ban on blocking, throttling, and paid prioritization; created
reversed that classification and reclassified BIAS as an
a general conduct standard; enhanced transparency
information service, effectively limiting the FCC’s
requirements; permitted providers to engage in “reasonable
authority to regulate BIAS directly. The FCC’s change in
network management” and provide “specialized services”
the classification of BIAS in less than a three-year period,
(e.g., heart or energy consumption monitors); and in general
has reopened the debate over whether congressional action
did not apply the rules to internet interconnection.
is needed to provide clarity and stability. There is
increasing agreement that legislation to outline regulatory
The FCC 2017 Restoring Internet
authority and provide a stable framework for BIAS is
Freedom Order
desirable, but the specifics remain elusive.
In December 2017 the FCC vacated the 2015 Order and
adopted a new framework (2017 Order) that reclassifies
Role of the FCC versus the FTC. The FCC, an
BIAS and embraces a less proscriptive approach. The 2017
independent regulatory agency, regulates interstate wire and
Order, which went into effect on June 11, 2018, among
radio communications as delineated in the Communications
other things: restores the classification of BIAS as an
Act. The FCC generally promulgates and enforces
information service under Title I and Federal Trade
rules/regulations using its public interest standard, to
Commission (FTC) authority; removes the no blocking, no
establish regulatory frameworks as applied to the
throttling, and no paid prioritization rules; eliminates the
communications sector. The FTC has broad authority to
general conduct standard; removes FCC authority over
oversee the trade practices of entities across numerous
internet interconnection; expands the public transparency
market sectors under Section 5 of the Federal Trade
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Access to Broadband Networks: Net Neutrality
Commission Act (FTC Act), which prohibits unfair
Others feel that paid prioritization is anticompetitive and
methods of competition and unfair and deceptive trade
should be prohibited. Paid prioritization, they state, could
practices. The FTC generally enforces Section 5 by
have a negative impact on small, nascent companies that
examining particular factual circumstances and bringing
cannot afford to pay such fees, may be used to discriminate
enforcement actions on a case-by-case basis against
among content, and could thwart innovation. Whether paid
practices the FTC believes violate Section 5. In contrast to
prioritization is necessary to accommodate the growth of
the FCC, the FTC rarely issues prescriptive rules, unless
time-sensitive applications or is a practice that, absent
specifically directed to do so by Congress.
regulation, will cause marketplace or consumer harm
remains a contentious issue.
However, certain entities and activities are exempted from
Section 5’s coverage. These exemptions include one for
State Activity. The controversy over net neutrality is also
common carriers regulated under the Communications Act,
playing out in the states as they take three approaches:
such as landline or wireless telephone services. The
issuing executive orders; promulgating laws; and/or filing
classification of BIAS, therefore, has a major impact not
legal challenges. Some states are using their financial
only on the regulatory role of the FCC but the FTC as well.
power and procurement policies to regulate internet service
The FTC has no authority over BIAS if it is classified as a
provider (ISP) behavior by issuing executive orders that
telecommunications service, as it was in the 2015 Order,
require ISPs that conduct business with the state to adhere
because telecommunications services are common carriers
to various net neutrality rules. Many ISPs, not wishing to
under the Communications Act. On the other hand, the FTC
forgo state procurement contracts, may adhere to executive
does have authority to enforce Section 5 against BIAS
order requirements. In other cases, states are promulgating
providers when BIAS is an information service, because
laws establishing specific net neutrality regulations that
information services cannot be regulated as common carrier
would apply to all ISP activity within their states.
services under the Communications Act.
Individual legislation varies, with certain states embracing
all or some of the regulations contained in the 2015 Order,
In the 2017 Order, the FCC argued that classifying BIAS as
while others address issues that go beyond its scope.
an information service and returning authority to the FTC
was the preferable course of action due to, among other
How successful states will be in achieving their objectives
considerations, the FTC’s extensive experience overseeing
is subject to question. The FCC’s 2017 Order states that
data security and privacy practices across numerous sectors.
BIAS is an interstate service and contains provisions that
The FTC supported the FCC’s decision. Other stakeholders
preempt state or local requirements that are inconsistent
disagreed, arguing that the FTC’s practice of case-by-case
with the Order leaving the authority of the states to enforce
adjudication lacked certainty, and the establishment of a
these actions unclear.
regulatory framework would better serve the public interest.
State attorneys general from 22 states and the District of
Network Management and Paid Prioritization. In the
Columbia are among the petitioners challenging the legality
past most internet traffic was delivered on what is known as
of the 2017 Order. Petitions have been consolidated in the
a “best efforts” basis, a quality standard that does not
U.S. Court of Appeals, D.C. Circuit (Mozilla v. FCC, et. al.,
guarantee that the traffic will be delivered by a certain time
No.18-1051). Oral arguments were held on February 1,
or speed. Under best efforts some data packets arriving at
2019.
congestion points will be dropped and held until a future
date while others will be forwarded in real time. Earlier
Congressional Activity—116th Congress
common applications (e.g., email) are not time sensitive
Debate over what the appropriate regulatory framework
and the use of best efforts will not degrade the user
should be for broadband access has continued in the 116th
experience. Newer applications (e.g., telemedicine) are
Congress. Three bills to provide a regulatory framework to
sensitive to interruption and latency making network
outline FCC authority over BIAS by amending Title I of the
management practices that affect how packets travel over
Communications Act have been introduced (H.R. 1006,
the network of greater concern. Content providers offering
H.R. 1096, H.R. 1101). Two additional measures (H.R.
congestion-sensitive services may be given the option to
1644, S. 682) negate the 2017 Order and restore the 2015
pay a fee, to network managers, to ensure quality of service
Order and its subsequent regulations, thereby once again
by being given priority of transit at network congestion
classifying both mobile and fixed BIAS as a
points. This practice is known as paid prioritization.
telecommunications service under Title II of the
Communications Act.
Whether a BIAS regulatory framework should contain
provisions to address the practice of paid prioritization has
For More Information
become a major discussion point in the net neutrality
CRS Report R40616, The Net Neutrality Debate: Access to
debate. Some see paid prioritization as a reasonable
Broadband Networks.
management tool to ensure that time-sensitive applications
get priority over non-sensitive applications. Such
Angele A. Gilroy, Specialist in Telecommunications Policy
prioritization may be necessary, they state, given the growth
in such applications and may be needed to spur innovation.
IF10955


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Access to Broadband Networks: Net Neutrality


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