Net Neutrality Law: An Overview

Net Neutrality Law: An Overview

Net Neutrality Law: An Overview
October 18, 2022
While there is general support for the basic concept of the open internet, net neutrality has been a
perennially difficult subject for the Federal Communications Commission (FCC or Commission).
Chris D. Linebaugh
The complexity lies, in part, in the fact that the FCC’s ability to adopt net neutrality rules
Legislative Attorney
depends on the legal classification it gives to broadband internet access service under the

Communications Act of 1934. As amended, the Act defines two mutually exclusive categories of
services: telecommunications services and information services. While telecommunications

service providers are treated as highly regulated common carriers under Title II of the
Communications Act, the FCC has much more limited regulatory authority over information service providers.
The FCC has alternated between classifying broadband as a telecommunications service and an information service. The U.S.
Supreme Court and lower federal courts have affirmed the FCC’s discretion to make this classification decision, but courts
have also established that the FCC’s ability to adopt net neutrality regulations is contingent on its classification choice. In
2010, the FCC tried to adopt binding net neutrality rules while classifying broadband as an information service, and the U.S.
Court of Appeals for the D.C. Circuit largely overturned this effort. The FCC responded in 2015 by reclassifying broadband
as a Title II telecommunications service and adopting even more extensive net neutrality rules that the D.C. Circuit upheld.
These rules, among other things, prohibited broadband providers from discriminating against lawful internet traffic by
blocking it, degrading it, or favoring other internet traffic over it in exchange for payment. The FCC’s action was
controversial, but not only because of the net neutrality rules. The Title II reclassification gave the FCC extensive regulatory
authority over broadband and came with a new set of requirements, such as Title II’s prohibition on carriers charging unjust
and unreasonable rates to consumers.
Following a change in leadership, the FCC changed course again in 2017. Citing the regulatory uncertainty and compliance
costs of Title II, the FCC reclassified broadband as an information service and jettisoned the 2015 net neutrality rules. This
action likewise largely survived legal challenges, and remains in effect. This action has not, however, ended the debate on net
neutrality regulation. Some states have passed their own net neutrality laws, and a further change in federal policy—either
from Congress or the FCC—is possible.
This report provides an overview of net neutrality law as it has developed through FCC actions and court decisions. The
report first lays out the statutory provisions that set the legal boundaries for the FCC’s regulatory authority in this area. The
report then provides a historical overview of the FCC’s actions classifying broadband internet access service and addressing
net neutrality, and examines the judicial decisions reviewing these actions. The report concludes by considering possible next
steps in the field of net neutrality law, such as potential actions by Congress or the FCC.

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Contents
Introduction ..................................................................................................................................... 1
Statutory Framework ....................................................................................................................... 4
Titles I and III ............................................................................................................................ 4
Title II ........................................................................................................................................ 6
Section 706 of the Telecommunications Act ............................................................................. 7
FCC Actions and Court Decisions ................................................................................................... 8
Early Classification of BIAS and the Brand X Decision........................................................... 8
Internet Policy Statement and the Comcast Decision ............................................................. 10
2010 Order and the Verizon Decision ....................................................................................... 11
2015 Open Internet Order and the USTA decision .................................................................. 12
RIF Order ................................................................................................................................ 15
Mozilla Corp. v. FCC .............................................................................................................. 17
2020 Remand Order ................................................................................................................ 19
Next Steps...................................................................................................................................... 20

Contacts
Author Information ........................................................................................................................ 22

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Net Neutrality Law: An Overview

Introduction
President Biden signed an executive order on July 9, 2021, calling on the Federal
Communications Commission (FCC or Commission) to consider adopting “net neutrality” rules.1
Net neutrality generally refers to the idea that internet service providers should neither control
how consumers use their networks nor discriminate among the content providers that use their
networks.2 Should the FCC follow the President’s prompt, it will not be the first time the agency
has wrestled with net neutrality. Rather, for more than a decade, net neutrality has been a
perennially challenging issue for the Commission.
The difficulty springs in part from the fact that the FCC’s ability to adopt net neutrality rules is
tied to the legal classification it gives to broadband internet access service (BIAS) under the
Communications Act of 1934 (the Communications Act).3 The Communications Act, as amended,
gives the FCC different levels of regulatory authority depending on whether the Commission
classifies a service as a “telecommunications service” or an “information service.”4 The FCC has
broad authority under Title II of the Communications Act to regulate providers of
telecommunications services as common carriers.5 By contrast, the FCC’s regulatory authority
over information services—which are not subject to Title II—is limited.6
The FCC has alternated between classifying BIAS as a telecommunications service and an
information service. In the early years of BIAS, the FCC concluded that BIAS provided over
telephone lines—referred to as Digital Subscriber Line (DSL) service—involved a pure
transmission of information that was best classified as a telecommunications service.7 Several
years later, the Commission took a different approach toward BIAS provided over cable
television networks.8 It determined that the pure-transmission aspect of cable broadband
functionally integrated with a variety of other features that the Commission deemed information
services.9 Consequently, the FCC classified cable broadband service as a single integrated
information service.10 The U.S. Supreme Court upheld the FCC’s classification of cable BIAS in
its landmark 2005 decision in National Cable & Telecommunications Association v. Brand X
Internet Services.11 Brand X established the FCC’s discretion to choose between the
telecommunications and information service categories in classifying BIAS.12 Following Brand

1 Exec. Order No. 14036, Promoting Competition in the American Economy, 86 Fed. Reg. 36987 (issued July 9, 2021).
2 See CRS In Focus IF10955, Access to Broadband Networks: Net Neutrality, by Angele A. Gilroy (“While there is no
single accepted definition of net neutrality most agree that any such definition should include the general principles that
owners of the networks that comprise and provide access to the internet should not control how consumers lawfully use
that network; and should not be able to discriminate against content provider access to that network.”).
3 47 U.S.C. §§ 151–646.
4 Id. § 153(24), (53).
5 Id. §§ 153(51), 201–231.
6 Id. § 153(24), (53).
7 In the Matters of Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd.
24012 (1998) [hereinafter DSL Order].
8 In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798 (2002)
[hereinafter Cable Broadband Order].
9 Id.
10 Id.
11 545 U.S. 967 (2005).
12 Id. As discussed later in the report, the Court also held that the FCC is free to change its position, within the limits of
a reasonable statutory interpretation, as long as it provides an adequate justification for the change. Id. at 1001.
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X, the FCC reclassified DSL service and uniformly treated all forms of BIAS as information
services.13
At the same time, the FCC took steps toward promoting net neutrality. In 2005, the Commission
adopted a policy statement proclaiming that consumers are entitled to lawful internet content,
applications, and services of their choice.14 In 2010, the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) rejected the FCC’s effort to enforce this policy statement against
the BIAS provider Comcast in Comcast v. FCC, concluding that the Commission failed to ground
its action in a statutory provision giving it affirmative regulatory authority.15 The Commission
responded by issuing a new order (2010 Order) that adopted binding rules on internet openness.16
The FCC based its authority for the 2010 Order on Section 706 of the Telecommunications Act, a
non-Title II provision that directs the Commission to “encourage the deployment on a reasonable
and timely basis” of “advanced telecommunications capability.”17 The 2010 Order imposed a
transparency requirement on BIAS providers and prohibited them from blocking or
discriminating against lawful internet traffic, services, or devices.18 The D.C. Circuit again
invalidated the FCC’s action in its 2014 decision in Verizon v. FCC, overturning the anti-blocking
and discrimination rules.19 The court held that the anti-blocking and discrimination rules treated
BIAS providers as common carriers, which is prohibited under the Communications Act unless
they are classified as telecommunications carriers subject to Title II.20
The FCC responded to the Verizon decision by issuing a new order (2015 Open Internet Order)
that reclassified BIAS as a Title II telecommunications service.21 The 2015 Open Internet Order
imposed three bright-line rules designed to foster net neutrality,22 prohibiting BIAS providers
from: (1) “blocking” lawful content, applications, services, or non-harmful devices;
(2) “throttling” (i.e., impairing or degrading) lawful internet traffic on the basis of content,
applications, services, or non-harmful devices; and (3) engaging in “paid prioritization,” defined
as favoring some internet traffic over others in exchange for consideration.23 The 2015 Open
Internet Order also established a more flexible standard, known as the “General Conduct Rule,”
which prohibited BIAS providers from “unreasonably interfer[ing] or unreasonably
disadvantag[ing]” users from accessing the content or services of their choice.24

13 In the Matters of Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 FCC
Rcd. 14853 (2005) [hereinafter DSL Reclassification Order].
14 In the Matters of Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 FCC
Rcd. 14986, 14988 (2005) [hereinafter Internet Policy Statement].
15 600 F.3d 642 (D.C. Cir. 2010).
16 In the Matter of Preserving the Open Internet, 25 FCC Rcd. 17905 (2010) [hereinafter 2010 Order].
17 Id.
18 Id.
19 740 F.3d 623 (D.C. Cir. 2014).
20 Id.
21 In the Matter of Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601 (2015) [hereinafter 2015 Open
Internet Order].
22 Id.
23 Id.
24 Id.
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The D.C. Circuit upheld the 2015 Open Internet Order in United States Telecom Ass’n v. FCC
(USTA),25 but the Commission itself reversed course under new leadership a few years later.26 In a
new order adopted in December of 2017, called “Restoring Internet Freedom” (RIF Order), the
FCC reclassified BIAS as an information service and eliminated the bright-line rules and the
General Conduct rule, leaving in place only a transparency rule applicable to BIAS providers.27
The FCC justified the new approach by explaining that a “light-touch” regulatory framework for
BIAS would promote investment and innovation better than the “heavy-handed utility-style
regulation” of Title II.28 It also reasoned that the 2015 Open Internet Order’s net-neutrality rules
were unnecessary, given the transparency requirements, antitrust laws, and consumer protection
laws that would still apply to BIAS providers.29 The D.C. Circuit subsequently upheld the bulk of
the RIF Order in Mozilla Corp. v. FCC.30
The net neutrality debate did not end with the RIF Order and the Mozilla decision. Several states
have enacted net neutrality laws, and the U.S. Court of Appeals for the Ninth Circuit (Ninth
Circuit) has rejected arguments that California’s net neutrality law is preempted by federal law.31
Congress has also considered bills that would directly address net neutrality. On July 28, 2022,
some Members of Congress in the House and the Senate introduced the Net Neutrality and
Broadband Justice Act of 2022, which would revise the Communications Act’s
“telecommunications service” definition to include BIAS (S. 4676 and H.R. 8573, 117th
Congress).32 A number of bills were also introduced in the 116th Congress.33 For instance, the
Save the Internet Act, which passed the U.S. House of Representatives in 2020, would have
restored the 2015 Order.34 Absent passage of legislation, the FCC itself might adopt a new net
neutrality order.35
This report provides an overview of net neutrality law as it has developed through FCC actions
and court decisions. The report first lays out the statutory provisions that set the legal boundaries
for the FCC’s authority, including the difference between a telecommunications service subject to
Title II and a more lightly regulated information service. The report then provides a historical
overview of the FCC’s various actions classifying BIAS and addressing net neutrality, and it
examines courts’ review of these actions in Brand X, Comcast, Verizon, USTA, and Mozilla. The
report concludes by considering possible next steps in the realm of net neutrality law, such as
potential actions by Congress or the FCC.36

25 825 F.3d 674 (2016).
26 In re Restoring Internet Freedom, 33 FCC Rcd. 311 (2018) [hereinafter RIF Order].
27 Id. at 312–13.
28 Id. at 312.
29 Id. at 313.
30 940 F.3d 1 (D.C. Cir. 2019).
31 See the section “Next Steps” for a discussion of state net neutrality laws and possible congressional or FCC actions.
32 Id.
33 H.R. 1644, 116th Cong. (2019); H.R. 1101, 116th Cong. (2019); H.R. 1006, 116th Cong. (2019); H.R. 2136, 116th
Cong. (2019); H.R. 1096, 116th Cong. (2019).
34 Id.
35 Id.
36 For a discussion of policy issues related to net neutrality see CRS Report R40616, The Federal Net Neutrality
Debate: Access to Broadband Networks, by Patricia Moloney Figliola and CRS In Focus IF10955, Access to
Broadband Networks: Net Neutrality, by Angele A. Gilroy.
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Statutory Framework
The FCC has relied on its legal authority under the Communications Act and the
Telecommunications Act of 199637 (Telecommunications Act) to formulate its regulatory policy
towards BIAS and net neutrality. Under the Communications Act, wire and radio communications
are subject to a unified federal framework overseen by the FCC.38 The Communications Act is
divided into various titles, the first three of which are relevant to this report. Titles I and III define
categories of services that determine whether a service provider may be classified as a highly
regulated common carrier or a lightly regulated information service provider.39 Title II contains
the substantive requirements applicable to common carriers.40 Along with these three titles,
Section 706 of the Telecommunications Act figures prominently in the FCC’s net neutrality
actions. While much of the Telecommunications Act amended the Communications Act, Section
706 is a stand-alone provision that directs the FCC to encourage the deployment of broadband.41
Each of these provisions is discussed further below.
Titles I and III
Title I of the Communications Act defines two terms foundational to the FCC’s net neutrality
actions: “telecommunications service” and “information service.”42 “Telecommunications
service,” means the “offering of telecommunications for a fee directly to the public.”43
“Telecommunications,” in turn, is 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.”44
“Information service” is defined as the “offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information via
telecommunications.”45 This definition exempts “any such ability for the management, control, or
operation of a telecommunications system or the management of a telecommunications service”
(referred to as the “telecommunications management exception”).46
The Supreme Court has explained that these two key terms, which Congress added to the
Communications Act in the Telecommunications Act, have their origins in the FCC’s 1980
“Computer II” order.47 The Commission developed the Computer II rules to regulate computer-

37 The Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).
38 47 U.S.C. § 151 (“[B]y centralizing authority heretofore granted by law to several agencies and by granting
additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a
commission to be known as the ‘Federal Communications Commission’ . . . .”).
39 See id. §§ 153, 332(c).
40 See id. §§ 201–231.
41 Pub. L. No. 104-104, § 706, 110 Stat. 56, 153–54 (1996) (codified at 47 U.S.C. § 1302).
42 47 U.S.C. § 153(24), (53).
43 Id. § 153(53).
44 Id. § 153(50).
45 Id. § 153(24).
46 Id.; see also USTA, 825 F.3d at 705 (“[T]he Communications Act’s telecommunications management exception. . . .
excludes from the definition of an information service ‘any [service] for the management, control, or operation of a
telecommunications system or the management of a telecommunications service.’”) (quoting 47 U.S.C. § 153(123)).
47 Brand X, 545 U.S. at 976 (“These two statutory classifications originated in the late 1970’s, as the Commission
developed rules to regulate data-processing services offered over telephone wires. That regime, the Computer II rules,
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processing services offered over telephone wires. The rules distinguished between “basic” service
(i.e., telephone service) governed by Title II and “enhanced” service (i.e., computer processing
service), which was not.48 The Computer II rules also recognized a third category called “adjunct-
to-basic,” which was a precursor to the telecommunications management exception.49 The
“adjunct-to-basic” category included telephone services such as speed dialing, call forwarding,
and computer-provided directory assistance.50 While such adjunct-to-basic services technically
fell under the enhanced services definition, the Commission treated them as basic because of their
role in facilitating basic telephone service.51
In keeping with Computer II’s dichotomy between enhanced and basic services, Title I specifies
that entities providing telecommunications service—called telecommunications carriers—“shall
be treated as common carriers” and are governed by Title II.52 While the Act does not expressly
state that “information service” providers shall not be treated as common carriers, the Supreme
Court and the D.C. Circuit have described these two categories as mutually exclusive, and have
stated that information-service providers are not subject to Title II.53
Along with these Title I definitions, Title III of the Communications Act defines two similar
categories that are specific to mobile service: “commercial mobile service” and “private mobile
service.”54 Like telecommunications carriers, Title III says that a commercial mobile service
provider “shall be treated as a common carrier” insofar as it is engaged in the provision of such
service.55 Title III defines commercial mobile service to include any mobile service that is

distinguished between basic service (like telephone service) and enhanced service (computer-processing service offered
over telephone lines).”) (internal citations and quotations omitted).
48 See id.; see also In re Amendment of Section 64.702 of the Commission’s Rules and Regulations (Second Computer
Inquiry), 77 F.C.C.2d 384, 417–35 (1980) (discussing the distinctions between basic and enhanced services)
[hereinafter Computer II Order].
49 See In re Implementation of the Non-Accounting Safeguards, 11 FCC Rcd. 21905, 21958 (1996) (“In [a previous]
order, the Commission held that the enhanced services definition did not encompass adjunct-to-basic services. . . .
Similarly, we conclude that ‘adjunct-to-basic’ services are also covered by the ‘telecommunications management
exception’ to the statutory definition of information services, and therefore are treated as telecommunications services
under the 1996 Act”).
50 Id. at 21958, n.245 (“Adjunct-to-basic services include, inter alia, speed dialing, call forwarding, computer-provided
directory assistance, call monitoring, caller i.d., call tracing, call blocking, call return, repeat dialing, and call tracking,
as well as certain Centrex features.”).
51 Computer II Order, 77 F.C.C.2d at 421 (“We indicated [in a tentative decision] that computer processing
applications such as call forwarding, speed calling, directory assistance, itemized billing, traffic management studies,
voice encryption, etc., may be used in conjunction with voice service. The intent was to recognize that while [telephone
service] is a basic service, there are ancillary services directly related to its provision that do not raise questions about
the fundamental communications or data processing nature of a given service. Accordingly, we are not here foreclosing
telephone companies from providing to consumers optional services to facilitate their use of traditional telephone
service.”) (internal citations and quotations omitted); see also USTA, 825 F.3d at 691 (“Although adjunct-to-basic
services fell within the definition of enhanced services, the Commission nonetheless treated them as basic because of
their role in facilitating basic services.”).
52 47 U.S.C. § 153(51).
53 See Brand X, 545 U.S. at 975 (“The Act regulates telecommunications carriers, but not information-service
providers, as common carriers.”); USTA, 825 F.3d at 691 (“The [Act] subjects a telecommunications service, the
successor to basic service, to common carrier regulation under Title II. By contrast, an information service, the
successor to an enhanced service, is not subject to Title II. . . . The appropriate regulatory treatment therefore turns on
what services a provider offers to the public: if it offers telecommunications, that service is subject to Title II
regulation.”) (internal citations and quotations omitted).
54 47 U.S.C. § 332(c).
55 Id. § 332(c)(1)(A).
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“provided for profit and makes interconnected service available to the public.”56 It further defines
“interconnected service” as “service that is interconnected with the public switched network (as
such terms are defined by regulation by the Commission).”57 Title III defines private mobile
service in the negative, simply stating that it is any mobile service “that is not a commercial
mobile service or the functional equivalent of a commercial mobile service.”58
Title II
Title II sets out the requirements applicable to entities that are classified as common carriers per
Titles I and III.59 Many of these provisions are common-carrier requirements drawn from the
now-repealed Interstate Commerce Act of 1887.60 In particular, Sections 201 and 202 require
carriers to (1) provide communication service upon “reasonable request”; (2) charge “just and
reasonable rates”; and (3) engage in “no unjust or unreasonable discrimination.”61 Title II also
incorporates the Interstate Commerce Act’s tariffing provisions, requiring carriers to file their
rates with the FCC and restricting the ability of carriers to depart from these filed rates.62 It
further requires carriers to obtain authorization from the Commission before taking certain
actions, such as discontinuing or reducing service.63
Along with the original common-carrier requirements, later statutes, such as the
Telecommunications Act, have amended Title II to impose a variety of other obligations on
common carriers. For instance, carriers must comply with requirements ensuring service is
available to those with a hearing or speech disability,64 abide by privacy rules when handling
customer information,65 and, if they provide interstate service, must contribute to a fund used to
support “universal service” in rural and high-cost areas (the “Universal Service Fund”).66
Although Title II regulation is extensive, the Telecommunications Act amended the
Communications Act to give the FCC authority to refrain (or “forbear”) from applying particular

56 Id. § 332(d)(1).
57 Id. § 332(d)(2).
58 Id. § 332(d)(3).
59 Orloff v. FCC, 352 F.3d 415, 418 (D.C. Cir. 2003) (“A provider of CMRS (commercial mobile radio service) such as
Verizon is ‘a common carrier’ subject to Title II of the Communications Act.”).
60 See, e.g., Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 49 (2007) (“In
authorizing this traditional form of [common carrier] regulation, Congress copied into the 1934 Communications Act
language from the earlier Interstate Commerce Act of 1887 . . . .”) (internal citations omitted).
The Interstate Commerce Act was the first federal law to codify common-carrier requirements that had been developed
by courts at common law. See, e.g., FTC v. AT&T Mobility LLC, 87 F. Supp. 3d 1087, 1091 (N. Cal. 2015) (“The
Interstate Commerce Act was the first federal regulation to impose duties on common carriers and applied to ‘any
common carrier or carriers’ engaged in the railroad transportation of people or property interstate.”) (internal citations
and quotations omitted). The Act initially applied only to railroads but, with the Mann-Elkins Act of 1910, expanded to
include interstate telegraph and telephone service. Mann-Elkins Act of 1910, ch. 309, § 7, 36 Stat. 539, 544–45 (1910).
61 47 U.S.C. §§ 201(a)–(b), 202(a).
62 See also MCI WorldCom, Inc. v. FCC, 209 F.3d 760, 762 (D.C. Cir. 2000) (“The Act requires carriers to file their
tariffs with the FCC, and they are prohibited from charging consumers except as provided in the tariffs.”) (internal
citations omitted).
63 47 U.S.C. § 214; 47 C.F.R. part 63.
64 47 U.S.C. §§ 225, 255.
65 Id. § 222. For an overview of Title II’s privacy requirements, see CRS Report R45631, Data Protection Law: An
Overview, by Stephen P. Mulligan and Chris D. Linebaugh.
66 47 U.S.C. § 254.
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legal requirements to telecommunications carriers.67 Specifically, the FCC must forbear from
applying any statutory or regulatory requirement under the Communications Act to
telecommunications carriers if it determines that: (1) enforcement is unnecessary to ensure just,
reasonable, and non-discriminatory rates or practices; (2) enforcement is unnecessary for the
protection of consumers; and (3) forbearance is consistent with the public interest.68 Similarly,
Title III allows the Commission to “specify by regulation” any Title II requirements—other than
the antidiscrimination and other core Title II requirements—that are inapplicable to commercial
mobile services.69 The FCC has used these authorities to, for example, eliminate tariffing for
services offered by long-distance telephone carriers and by commercial mobile service
providers.70
Should a common carrier violate Title II’s requirements, the Act provides a process by which any
person can file a complaint with the Commission.71 The Commission is obligated to resolve the
complaint and, if it determines the complainant is entitled to damages, may order the carrier to
pay damages to the complainant.72 As an alternative to the complaint process, Title II also allows
individuals injured by a carrier’s violation to sue the carrier in federal district court for damages
and attorney’s fees.73 The FCC also has civil enforcement authority and may impose a “forfeiture
penalty” against carriers who willfully or repeatedly violate the statute or the FCC’s
implementing regulations.74
Section 706 of the Telecommunications Act
Section 706 of the Telecommunications Act is the final key statutory provision underlying the
FCC’s net neutrality actions. Section 706 directs the FCC to “encourage the deployment on a
reasonable and timely basis of advanced telecommunications capability to all Americans.”75 It
defines advanced telecommunications capability as “high-speed, switched, broadband
telecommunications capability” that enables users to “originate and receive high-quality voice,
data, graphics, and video telecommunications using any technology.”76 It specifies that, in doing
so, the Commission shall, in a manner consistent with the public interest, use “price cap
regulation, regulatory forbearance, measures that promote competition in the local
telecommunications market, or other regulating methods that remove barriers to infrastructure.”77
It further requires that the FCC conduct regular studies on the availability of advanced
telecommunications capability.78 When the Commission finds that advanced telecommunications

67 Id. § 160.
68 Id. § 160(a).
69 Id. § 332(c)(1)(A).
70 See, e.g., Orloff, 352 F.3d at 418–19 (“Congress gave the Commission authority to render [the tariff provisions]
inapplicable to CMRS and, in 1994, the Commission exercised that authority.”); MCI WorldCom, 209 F.3d 762–66
(upholding the FCC’s use of its forbearance authority to require mandatory de-tariffing of long-distance carriers).
71 47 U.S.C. § 208.
72 Id. §§ 208–09.
73 Id. §§ 206–07.
74 Id. § 503(b)(1). For telecommunications carriers, forfeiture penalties may be up to $207,314 for each violation or
each day of a continuing violation. 47 C.F.R. § 1.80(b)(2). The total amount assessed for any continuing violation may
not exceed $2,073,133 for any “single act or failure to act.” Id.
75 (a).
76 Id. § 1302(d)(1).
77 Id. § 1302(a).
78 Id. § 1302(b).
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capability is not being deployed to all Americans in a “reasonable and timely fashion,” it must
take “immediate action” to accelerate deployment by “removing barriers to infrastructure
investment and by promoting competition in the telecommunications market.”79
As discussed further below, a key question is whether Section 706 is an affirmative grant of
regulatory authority, or whether it is merely exhorting the FCC to use its existing authority under
the Communications Act to encourage broadband deployment. The FCC has alternated views on
this issue, most recently taking the position that it is not an affirmative grant of regulatory
authority. The D.C. Circuit has upheld both the FCC’s disclaimer and its exercise of regulatory
authority under Section 706.80
FCC Actions and Court Decisions
The FCC has relied on the foregoing statutory provisions to create a regulatory framework for
BIAS and net neutrality. The Commission’s approach, however, has not always been consistent,
and the FCC has had mixed success defending its actions before courts. This section describes the
FCC’s various attempts to articulate a regulatory policy towards BIAS and net neutrality. It starts
by reviewing the Commission’s early efforts to determine the appropriate classification of BIAS
under the Communications Act and the Supreme Court’s decision in Brand X, which confirmed
the FCC’s authority to make such a determination. The section then discusses the FCC’s various
net neutrality actions and the court decisions resolving challenges to those actions.
Early Classification of BIAS and the Brand X Decision
In the early years of broadband, the Commission grappled with the question of whether to treat
BIAS as an information service or a telecommunications service. The Commission’s first
broadband classification decision dealt with Digital Subscriber Line (DSL) service.81 DSL service
uses packet-switching technology to deliver high-speed internet over telephone lines.82 In a 1998
order (1998 Order), the FCC concluded that DSL has both telecommunications service and
information service components.83 The aspect of DSL service that uses phone lines to transmit the
data is a telecommunications service, the FCC explained, because it involves the pure
transmission of information “without change in the form or content of the information as sent and
received.”84 On the other hand, the FCC recognized a separate information service component of
DSL service, in which DSL providers perform additional functions that enable the users to access
the internet.85 While the 1998 Order did not describe precisely what this separate information
service component entails, the FCC would later explain that it includes things like Domain Name
System (DNS) capability, which matches the user’s selected website address with the IP address
of the website’s host server.86 In the 1998 Order, the FCC concluded that telephone carriers

79 Id.
80 See Verizon, 740 F.3d at 641 (upholding the FCC’s interpretation of Section 706 to grant regulatory authority to
promulgate non-common-carrier regulations over BIAS providers); Mozilla Corp. v. FCC, 940 F.3d 1, 46 (D.C. Cir.
2019) (upholding the FCC’s interpretation of Section 706 as hortatory).
81 DSL Order, 13 FCC Rcd. 24012.
82 Id. at 24027.
83 Id. at 24030–31.
84 Id. at 24030.
85 Id.
86 DSL Reclassification Order, 20 FCC Rcd. at 14863.
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providing DSL services would be regulated as Title II telecommunications carriers, unless they
created a separate affiliate to provide only the internet access service component of DSL.87
In a 2002 order (2002 Order), the Commission took a different approach to BIAS provided by
cable television operators.88 By the time of the 2002 Order, cable broadband had become the most
widely used form of broadband service, and phone companies had pared back their DSL
deployment plans.89 Up to that point, the FCC had not clarified cable broadband’s regulatory
treatment.90 The FCC explained that, in addressing this question, it was guided by policy goals of
encouraging the widespread availability of broadband and maintaining the “vibrant and
competitive free market” for internet services by avoiding unnecessary regulatory costs.91 Rather
than treating the transmission and internet access components as separate stand-alone offerings,
the Commission concluded that they formed a “single, integrated information service.”92
The FCC explained that the classification of a service depends on the nature of what it offers the
end user.93 Cable broadband providers, the FCC concluded, were offering not only the ability to
transmit and receive data over the internet, but also information service functions offered by the
internet service providers.94 For instance, the FCC observed, providers typically gave users the
ability to set up their own email address or web page and participate in newsgroups.95 Cable
broadband providers also facilitated users’ ability to communicate with the rest of the internet by
providing things like DNS, IP address number assignment, network security, and “caching”
(which allows users to access a website more quickly by storing the website’s data on a local
server).96 The FCC concluded that these features were not separable from the pure transmission
component, and comprised a single, integrated offering that is properly classified as an
information service rather than a Title II telecommunications service.97
The Supreme Court subsequently upheld this classification of cable broadband in Brand X,
applying the framework set forth in Chevron USA, Inc. v. Natural Resources Defense Council,
Inc.,98 under which courts generally defer to an agency’s reasonable interpretation of an
ambiguous statutory provision.99 In the course of its analysis, the Court concluded that the term
“offering” in the telecommunications service definition is ambiguous and that it is reasonable for
the FCC to interpret it as only referring to the finished product offered by a provider, rather than
the discrete parts of that product.100 The relevant question then, the Court explained, was whether
the transmission components and the information service components were “sufficiently

87 Id. at 24030, 24052.
88 Cable Broadband Order, 17 FCC Rcd. 4798.
89 Id. at 4804.
90 Id. at 4801.
91 Id. at 4802.
92 Id. at 4823.
93 Id. at 4822 (“[W]e conclude that the classification of cable modem service turns on the nature of the functions that
the end user is offered.”).
94 Id. at 4822.
95 Id. at 4821–22.
96 Id. at 4811, n.76.
97 Id. at 4823–32.
98 467 U.S. 837 (1984).
99 Brand X, 545 U.S. at 980. For a more detailed overview of the Chevron deference framework, see CRS Report
R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
100 Id. at 989–99.
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integrated” such that it is “reasonable to describe the two as a single, integrated offering.”101 The
Court held that the Commission had reasonably answered this question in the affirmative.102 The
Court explained that BIAS providers’ use of DNS services and caching supported the FCC’s
classification,103 even though users could access third-party websites rather than a provider’s own
web page or email service.104 The Court also rejected the petitioner’s contention that the
Commission acted “arbitrar[ily] and capricious[ly],” in violation of the Administrative Procedure
Act (APA), by treating cable broadband differently from DSL.105 Under the arbitrary and
capricious standard, agencies must demonstrate that they engaged in reasoned decisionmaking in
reaching their determinations.106 The Court explained that the FCC is free to change its position,
within the limits of a reasonable statutory interpretation, as long as it “adequately justifies the
change.”107 The Court held that the Commission had given an adequate justification, given the
FCC’s explanation of changed market conditions.108
Internet Policy Statement and the Comcast Decision
In the wake of Brand X, the Commission unified its treatment of all forms of BIAS by similarly
classifying DSL and mobile broadband internet service as integrated offerings of information
services.109 Even though BIAS providers were not subject to the anti-discrimination and other
provisions applicable to common carriers under Title II, the Commission still sought to further the
principles of internet openness. In 2005, the FCC adopted a policy statement (Internet Policy
Statement) in which it declared, among other things, that consumers are entitled to access the
lawful Internet content of their choice and to run applications and use the services of their
choice.110 The FCC stated that these principles would ensure that broadband networks are widely
deployed and accessible to all consumers and that it would incorporate them into its ongoing
policymaking activities.111 The Internet Policy Statement also asserted that, even without Title II,
the FCC had jurisdiction to impose regulatory obligations on BIAS providers under “its Title I
ancillary jurisdiction,” which allows the agency to regulate any interstate communication by wire
or radio if the regulation is in furtherance of its statutory responsibilities.112

101 Id. at 990.
102 Id.
103 Id. at 990–91.
104 Id.
105 Id. at 706–10.
106 See Motor Vehicle Mfg. Ass’n v. State Farm Auto Mutual Ins. Co., 463 U.S. 29, 52 (1983) (“In this case, the
agency’s explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that
the rescission was the product of reasoned decisionmaking.”) (emphasis in original). For further background on the
arbitrary and capricious standard, see CRS Report R44699, An Introduction to Judicial Review of Federal Agency
Action, by Jared P. Cole.
107 545 U.S. at 1001.
108 Id.
109 DSL Reclassification Order, 20 FCC Rcd. at 14,863–64; In re Appropriate Regulatory Treatment for Broadband
Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901, 5901–02 (2007).
110 Internet Policy Statement, 20 FCC Rcd. at 14,988.
111 Id.
112 Id. at 14,987–88. For a further discussion of the FCC’s ancillary jurisdiction, see CRS Report R46736, Stepping In:
The FCC’s Authority to Preempt State Laws Under the Communications Act, by Chris D. Linebaugh and Eric N.
Holmes.
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Five years later, in the 2010 case Comcast v. FCC, the D.C. Circuit struck down the FCC’s
attempt to enforce the principles in its Internet Policy Statement.113 In Comcast, non-profit
advocacy organizations filed a complaint with the FCC alleging that the BIAS provider Comcast
violated the Internet Policy Statement by interfering with subscribers’ use of peer-to-peer
programs that allowed them to share large files directly with each other.114 The FCC resolved the
complaint through an adjudication, issuing an order requiring Comcast to implement a plan to
ensure that it would no longer engage in “unreasonable management practices.”115 Similar to its
position in the Internet Policy Statement, the FCC maintained that it had authority to regulate
Comcast’s network management practices in this way under its ancillary jurisdiction.116 The D.C.
Circuit, however, invalidated the FCC’s order.117 The court said that the FCC failed to show that
its regulation of Comcast’s network management practices furthered the effective performance of
its “statutorily mandated responsibilities.”118 The court reasoned that the FCC primarily relied on
congressional statements of policy, which by themselves do not create statutorily mandated
responsibilities.119 The court acknowledged that Section 706 of the Telecommunications Act,
which is one of the provisions the FCC relied upon, could be read as giving the FCC affirmative
regulatory authority over broadband.120 However, in a prior order the FCC had disclaimed
regulatory authority under Section 706, and the Commission was bound by this prior
interpretation since it had never rescinded it.121
2010 Order and the Verizon Decision
The FCC responded to the Comcast decision by issuing a new order (2010 Order).122 In the 2010
Order, the FCC repudiated its prior reading of Section 706 and reinterpreted it as vesting the
Commission with affirmative regulatory authority.123 The 2010 Order also set forth binding net
neutrality requirements applicable to BIAS providers. Specifically, BIAS providers had to comply
with: (1) a transparency rule requiring them to disclose their network management practices,
performance, and commercial terms; (2) an anti-blocking rule prohibiting them from blocking
lawful content, applications, services, or non-harmful devices; and (3) an anti-discrimination rule
prohibiting them from unreasonably discriminating in transmitting lawful network traffic.124
While the first two rules applied to both “fixed” (e.g., residential) and mobile BIAS providers, the
FCC applied the anti-discrimination requirement only to fixed BIAS, citing greater competition
and higher operational constraints in the mobile market.125

113 600 F.3d 642 (D.C. Cir. 2010).
114 Id. at 644.
115 In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly
Degrading Peer-to-Peer Applications, 23 F.C.C. Rcd. 13028, 13028, 13060 (2008).
116 Id. at 13034–44.
117 Comcast, 600 F.3d at 644.
118 Id.
119 Id. at 644, 651–661.
120 Id. at 658.
121 Id. at 659.
122 2010 Order, 25 FCC Rcd. at 17906.
123 Id. at 17968–72.
124 Id. at 17906.
125 Id. at 17956–62.
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In its 2014 decision in Verizon v. FCC, the D.C. Circuit again overturned the FCC’s attempt at
enforcing net neutrality rules.126 The court vacated the 2010 Order’s anti-blocking and anti-
discrimination rules, leaving only the transparency rule intact.127 The court deferred to the FCC’s
interpretation of Section 706 as an independent grant of authority sufficient to support the rules
established by the 2010 Order.128 The court concluded, however, that the anti-blocking and anti-
discrimination rules amounted to per se common carrier regulation because they required BIAS
providers to offer service indiscriminately,129 which is the fundamental characteristic
distinguishing common carriers from private carriers.130 Because the FCC had classified BIAS
providers as information service providers instead of telecommunications service providers, this
per se common carrier treatment was unlawful. The court explained that the FCC was prohibited
by Title I’s statement that “[a] telecommunications carrier shall be treated as a common carrier . .
. only to the extent that it is engaged in providing telecommunications services.”131
2015 Open Internet Order and the USTA decision
After Verizon, the FCC changed its approach. In a 2015 order titled “In the Matter of Protecting
and Promoting the Open Internet” (2015 Open Internet Order), the Commission reclassified BIAS
as a telecommunications service subject to Title II.132 This reclassification allowed the FCC to
impose net neutrality rules on BIAS providers, like those struck down in Verizon, without running
afoul of the Communications Act.133 As a policy rationale for its action, the FCC maintained that
net neutrality rules are essential to preserving a “virtuous cycle” of broadband growth.134 This
virtuous cycle occurs when innovation by edge providers (i.e., companies who provide content
and services to internet users) enhances consumer demand for broadband services, which leads to
expanded investment in broadband infrastructure by broadband providers, which in turns leads to
more innovation by edge providers.135 The Commission explained that the “key insight” of the
virtuous cycle is that BIAS providers have the “incentive and ability to act as gatekeepers”
between content providers and consumers, for instance by blocking or exacting unfair tolls on
edge providers who compete with the BIAS providers’ own services.136 Consequently, the
Commission concluded, net neutrality rules are necessary to prevent this harmful gatekeeping
behavior.137
From a legal perspective, the agency reasoned that BIAS fit the telecommunications service
definition due to changes in the broadband market.138 According to the Commission, consumers
primarily use BIAS as a “conduit” to reach content and services provided by third parties.139 Any

126 740 F.3d 623 (D.C. Cir. 2014).
127 Id. at 628.
128 Id. at 636–49.
129 Id. at 655–56.
130 Id. at 651–52.
131 Id. at 650 (citing 47 U.S.C. § 153(51)).
132 2015 Open Internet Order, 30 FCC Rcd. 5601.
133 Id. at 5733–34.
134 Id. at 5604.
135 Id.
136 Id. at 5608.
137 Id. at 5625.
138 Id. at 5752–57.
139 Id. at 5615, 5752–57.
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information services, such as BIAS-provided email, are perceived by consumers as distinct
offerings.140 The FCC said that BIAS providers’ use of DNS and caching did not prevent this
classification because these services fell under the telecommunications management exception
and thus were not information services.141
Along with reclassifying BIAS as a telecommunications service, the FCC reclassified mobile
BIAS as a commercial mobile service instead of a private mobile service.142 This reclassification,
the Commission explained, ensured equivalent treatment between mobile and fixed BIAS, since
private mobile service providers may not be treated as common carriers subject to Title II.143 The
FCC accomplished this reclassification by exercising its express statutory authority to define
“public switched network”—a term integral to the commercial mobile service definition.144 While
the FCC previously defined public switched network to cover networks using the North American
Numbering Plan, it broadened this definition to include networks using public IP addresses.145
With these new classifications, the 2015 Open Internet Order proceeded to impose three “bright-
line” rules146 that banned BIAS providers from: (1) “blocking” lawful content, applications,
services, or non-harmful devices; (2) “throttling” (i.e., impairing or degrading) lawful internet
traffic on the basis of content, applications, service, or non-harmful devices; and (3) engaging in
“paid prioritization”—defined as favoring some internet traffic over others—in exchange for
consideration.147 The 2015 Open Internet Order also imposed a more flexible standard referred to
as the “General Conduct Rule,”148 which prohibited BIAS providers from “unreasonably
interfer[ing] with or unreasonably disadvantag[ing]” both end users’ ability to access or select and
content providers’ ability to provide lawful content, applications, services, or devices.149 The
2015 Open Internet Order likewise built on the transparency rule of the 2010 Order upheld in
Verizon.150 The new transparency rule retained the three basic disclosure categories established in
the 2010 Order—network management practices, performance, and commercial terms151—and
specified additional information that BIAS providers must disclose regarding these categories,
including pricing details, fees, data caps, packet loss, and network practices applied to traffic
associated with a particular user or user group.152
To ensure a “light touch” regulatory regime facilitating investment and innovation, the
Commission used its authority under Section 10 of the Communications Act to forbear from
applying the “vast majority” of Title II provisions to BIAS providers.153 It did not, however,
forbear from applying Title II’s prohibition of unjust and unreasonable rates and its complaint and

140 Id. at 5773.
141 Id. at 5766–71.
142 Id. at 5778–90.
143 Id. at 5788.
144 Id. at 5783–88; see also 47 U.S.C. § 332(d)(2) (stating that “interconnected service” means “service that is
interconnected with the public switched network (as such terms are defined by regulation by the Commission . . . .”)).
145 2015 Open Internet Order, 30 FCC Rcd. at 5779–80.
146 Id. at 5646–47.
147 Id. at 5647–58.
148 Id. at 5659–64.
149 2015 Open Internet Order, 30 FCC Rcd. at 5660.
150 Id. at 5672.
151 Id.
152 Id. at 5672–77.
153 Id. at 5616–17, 5805–68.
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enforcement procedures.154 The 2015 Open Internet Order also applied a handful of other Title II
provisions to BIAS providers, such as certain requirements relating to privacy, disability access,
and universal service.155 To preserve this “carefully tailored regulatory scheme,” the FCC
“announced [its] firm intention” to preempt any state regulations that conflicted with the order.156
It noted, however, that it would proceed on a “case-by-case basis in light of the fact specific
nature of particular preemption inquiries.”157
The 2015 Open Internet Order was not unanimous, with commissioners Ajit Pai and Michael
O’Rielly dissenting.158 These commissioners viewed the order’s neutrality rules as unnecessary
because, in their view, there was little evidence of BIAS providers disfavoring lawful internet
traffic.159 They also contended that reclassifying BIAS as a Title II telecommunications service
would create significant regulatory costs and would slow broadband investment and
innovation.160
The following year, in USTA v. FCC, the D.C. Circuit upheld the FCC’s 2015 Open Internet
Order in its entirety.161 The court applied the Chevron framework to uphold the Commission’s
reclassification of BIAS as a telecommunications service.162 Following Brand X, it concluded that
“offering” was ambiguous and that the relevant question was the extent to which information and
transmission services were integrated.163 On this issue, the court held that the Commission
reasonably concluded that BIAS providers were “offering” a standalone transmission service.164
The court credited extensive evidence in the record that consumers perceived the transmission
service as separate from any information services like email and cloud storage.165 The court
further upheld the FCC’s conclusion that DNS and caching fell under the telecommunications
management exception.166 The Commission had relied for that conclusion on the test for the
adjunct-to-basic standard under the Computer II regime.167 Under this test, a service would be
deemed adjunct-to-basic if it facilitated the use of the network and did not alter the “fundamental

154 Id. at 5809–16. While the Commission did not forbear from applying Sections 201 and 202 to BIAS providers, it
also stated that it could not envision using Sections 201 and 202 to adopt “new ex ante rate regulation of broadband
internet access in the future,” and consequently forbore from applying those provisions “to that extent.” Id. at 5814.
155 Id. at 5820–38.
156 Id. at 5804.
157 Id.
158 Id. at 5921, 5985 (statements of commissioners Ajit Pai and Michael O’Rielly, dissenting).
159 Id. at 5933 (“The Internet is not broken. There is no problem for the government to solve. . . . The evidence of these
continuing threats [to internet openness]? There is none; it’s all anecdote, hypothesis, and hysteria.”); id at 5987 (“Even
after enduring three weeks of spin, it is hard for me to believe that the Commission is establishing an entire Title II/net
neutrality regime to protect against hypothetical harms. There is not a shred of evidence that any aspect of this structure
is necessary.”).
160 Id. at 5927–28 (“The record is replete with evidence that Title II regulations will slow investment and innovation in
broadband networks. . . . “[The Order] goes even further and injects tremendous uncertainty into the market. . . .[A]
thick regulatory haze–rules that are unclear with the overhang of more rules to come–should make any rational
business hold back on investment and start returning any free cash back to their shareholders.”).
161 825 F.3d 674 (2016).
162 Id. at 701–06.
163 Id. at 701–02.
164 Id. at 704–05.
165 Id.
166 Id. at 705–06.
167 Id. at 705.
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character” of the service.168 According to the court, the Commission reasonably concluded that
DNS and caching satisfied this test, as the petitioner challenging the 2015 Open Internet Order
did not give any reason to believe otherwise.169
The court also rejected the petitioner’s contention that the Commission’s reclassification of BIAS
as a telecommunications service was “arbitrary and capricious” in violation of the APA.170 Under
this standard, the court explained, agencies must provide reasoned explanations for their
decisions, including good reasons for policy changes.171 The court held that the agency met this
standard, as it had explained that it could not legally establish the three bright-line rules (anti-
blocking, anti-throttling, and anti-paid-prioritization rules) without the reclassification, given the
Verizon decision.172 The court also upheld the 2015 Order’s reclassification of mobile broadband
as a commercial mobile service.173 The court reasoned that the statute expressly gave the
Commission authority to define the “key definition components” of the commercial and private
mobile service categories.174 It further concluded that the Commission’s reclassification was
reasonable, since the record evidence demonstrated that mobile broadband use had grown rapidly
and was nearly universal.175
RIF Order
Although the USTA decision upheld the 2015 Open Internet Order, the FCC again changed course
a few years later. Under new leadership, the Commission issued a declaratory ruling, report, and
order titled “Restoring Internet Freedom” (RIF Order), which the Commission adopted in
December of 2017 and released in January of 2018.176 The RIF Order once more classified fixed
BIAS as an information service and mobile BIAS as a private mobile service.177 The Order also
eliminated the 2015 Open Internet Order’s bright-line rules and General Conduct Rule.178 While
the RIF Order retained a transparency rule, it removed many of the 2015 Order’s additional
disclosure obligations and reverted to a transparency rule similar to the one set forth in the 2010
Order.179
The Commission explained its change in position by characterizing the 2015 Open Internet Order
as an “abrupt shift” to “heavy-handed utility-style regulation” of BIAS.180 The FCC stated that the
“balance of evidence in the record” indicated that the 2015 Open Internet Order’s Title II
reclassification had reduced broadband providers’ investment in networks because of regulatory
uncertainty.181 The FCC further characterized the “utility-style regulation” of Title II classification

168 Id.
169 Id. at 705–06.
170 Id. at 706–10.
171 Id. at 706–07.
172 Id. at 707.
173 Id. at 716–24.
174 Id. at 717.
175 Id. at 716, 723–24.
176 RIF Order, 33 F.C.C. Rcd. 311.
177 Id.
178 Id. at 312–13, 450–69.
179 Id. at 435–50.
180 Id. at 312.
181 Id. at 364
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as a “solution in search of a problem”182 and said that the benefits of Title II and the conduct rules
were either small or “approximately zero.”183 The Commission also pointed out that removal of
the Title II classification would restore the Federal Trade Commission’s (FTC) ability to enforce
consumer protection and antitrust laws against BIAS providers, since the FTC has no jurisdiction
over common carriers.184 The FCC maintained that this enforcement, in combination with the
disclosures required under the transparency rule, would mitigate the harms the 2015 Open
Internet Order intended to address.185
Beyond these policy reasons, the agency put forward a number of legal arguments supporting its
reclassification of fixed and mobile BIAS. With respect to the information service classification,
it maintained that fixed BIAS providers “offer” an information service because DNS and caching
are functionally integrated with broadband service.186 It relatedly concluded that DNS and
caching are information services because, contrary to the 2015 Open Internet Order, they do not
fall under the telecommunications system management exception.187 To reach this conclusion, the
FCC drew on the judicial precedent interpreting the Modification of Final Judgement (MFJ), a
consent decree governing the breakup of the AT&T Monopoly.188 The MFJ incorporated the
telecommunications management exception that Congress later largely adopted in the 1996 Act.
According to the Commission, the MFJ precedent construed this exception as directed only at
“internal operations” rather than services for customers or end users.189 The FCC maintained that
DNS and caching did not meet this exception because they are not simply internal management
functions but are useful to end users, allowing users to navigate the internet and quickly retrieve
information.190
The Commission also reclassified mobile BIAS as a private mobile service by removing the
reference to public IP addresses from the “public switched network” definition, which had been
added by the 2015 Open Internet Order.191 With this phrase removed, the Commission concluded
that mobile BIAS did not meet the definition of a commercial mobile service because it is not
interconnected with the public switched network.192
Finally, to ensure BIAS providers are governed by uniform regulations rather than a “patchwork”
of state and local laws, the RIF Order preempted state and local requirements inconsistent with
the RIF Order’s deregulatory approach.193 Specifically, the Commission preempted any state or

182 Id. at 375.
183 Id. at 493–95.
184 Id.; see also 15 U.S.C. § 45(a) (removing common carriers from the FTC’s jurisdiction under the Federal Trade
Commission Act).
185 RIF Order, 33 FCC Rcd. at 493–95.
186 Id. at 325.
187 Id. at 326–28.
188 United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131 (D.D.C. 1982) (MFJ Initial Decision), aff'd sub
nom. Maryland v. United States, 460 U.S. 1001 (1983).
189 RIF Order, 33 FCC Rcd. at 328.
190 Id. at 328–29, 332–33.
191 Id. at 354–56. The 2018 Order also reverted back to the prior definition of “interconnected service” by reinserting
the word “all”—defining it as a service “that gives subscribers the capability to communicate to or receive
communication from all other users on the public switched network.” Id. at 56. The Commission explained that this
change would reflect the Commission’s view that interconnected service “is one that enables communication between
its users and all other users of the public switched network.” Id.
192 Id. at 357–58.
193 Id. at 426–27.
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local laws “that would effectively impose rules or requirements that [it] repealed or decided to
refrain from imposing” or that imposed “more stringent requirements for any aspect of broadband
service” addressed by the RIF Order.194
Similar to the 2015 Open Internet Order, the Commission divided over the RIF Order, with
commissioners Mignon Clyburn and Jessica Rosenworcel dissenting.195Among other things, the
dissenting commissioners cited to the 2015 Open Internet Order’s broad popularity with
consumers;196 faulted the majority for abdicating regulatory oversight over BIAS providers;197
and criticized the majority’s legal reasoning and empirical analysis, such as disputing the
evidence that the 2015 Open Internet Order led to decreased investment by BIAS providers.198
Mozilla Corp. v. FCC
Several internet companies, non-profits, and state and local governments petitioned the D.C.
Circuit to review the RIF Order, arguing that it exceeded the FCC’s statutory authority and
violated the APA’s arbitrary and capricious standard.199 In Mozilla Corp. v. FCC, the D.C. Circuit
rejected most of these arguments and upheld the bulk of the Order.200 Applying the usual Chevron
framework, the court held the Commission’s reclassification of fixed BIAS as an information
service was reasonable in light of the FCC’s reliance on DNS and caching.201 The D.C. Circuit
reasoned that the Supreme Court’s decision in Brand X supported this approach because it had
upheld the Commission’s information service classification in light of the integrated nature of
these services.202 The D.C. Circuit also upheld the Commission’s conclusion that DNS and
caching fell outside the telecommunications system management exception.203 The court
acknowledged that this issue was not directly addressed in Brand X, and that, in USTA, the D.C.
Circuit had upheld the Commission’s contrary interpretation.204 The court explained, however,
that the exception was “an ambiguous statutory phrase” and, under Chevron, it is the FCC’s
prerogative to change its interpretation of the exception as long as its new construction is
reasonable.205 The court held that the FCC had met this reasonability requirement, given its
reliance on MFJ precedent and its view that the alternative approach would allow the exception to

194 Id. at 427.
195 Id. at 533, 579 (statements of commissioners Mignon Clyburn and Jessica Rosenworcel, dissenting).
196 Id. at 362, 364 (“We have heard story after story of what net neutrality means to consumers and small businesses
from places as diverse as Los Angeles’ Skid Row and Marietta, Ohio . . . . I have been asking myself repeatedly, why
the majority is so singularly-focused on overturning these wildly-popular rules?”).
197 Id. at 363 (“We will be in a world where regulatory substance fades to black, and all that is left is a broadband
provider’s toothy grin and those oh so comforting words: we have every incentive to do the right thing. What they will
soon have, is every incentive to do their own thing.”);
198 Id. at 365–66 (“[T]he majority’s reliance on broadband providers[’] assertions of reductions in investment is highly-
flawed. Nothing in this item convinces me that investment has dropped as a result of our net neutrality policies. . . . To
suggest that net neutrality rules shifted billions of dollars in capital beggars the imagination, and the record offers no
proof that investment trends match the regulatory landscape.”).
199 Mozilla, 940 F.3d at 17.
200 Id. at 18.
201 Id. at 20.
202 Id. at 20–22.
203 Id. at 23–32.
204 Id. at 23–24.
205 Id.
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“swallow” the information service category.206 Along with the information service
reclassification, the court upheld the RIF Order’s reclassification of mobile broadband as a
private mobile service.207 Echoing its reasoning in USTA, the D.C. Circuit stated that the
Commission had explicit statutory authority to modify its definition of the integral phrase “public
switched network.”208 The court concluded that the FCC also had “compelling policy grounds”
for this change because, given its new information service classification of BIAS, it would ensure
consistent treatment of fixed and mobile BIAS.209
For the most part, the court also upheld the RIF Order against the petitioners’ claim that the Order
violated the APA’s arbitrary and capricious standard.210 Petitioners argued that the RIF Order was
arbitrary and capricious because the Commission failed to adequately consider a number of
issues, such as the Order’s impact on investment and innovation, and the reliance interests
engendered by the 2015 Open Internet Order.211 While the court rejected most of these arguments,
it held the FCC had acted arbitrarily and capriciously with respect to three issues: public safety,
utility pole attachments, and the Lifeline Program.212 On public safety, the court concluded the
FCC failed to address arguments that the RIF Order could imperil first responders’ ability to
communicate with the public during a crisis. Specifically, the Commission failed to consider
arguments that the RIF Order allowed BIAS providers to demand payment for top-rate speeds and
prioritize internet traffic at their discretion, which could subject public safety communications to
slower speeds.213
Regarding utility pole attachments, the court concluded the FCC did not adequately consider how
the Order would impact the regulatory regime’s application to BIAS providers.214 As the court
explained, Section 224 of the Communications Act allows local governments to regulate the
terms and conditions of utility pole attachments and requires utility companies to provide access
to their poles on a nondiscriminatory basis.215 This section, however, only expressly applies to
cable television systems or telecommunications services—there is no reference to information
services.216 Despite Section 224’s seeming inapplicability to BIAS, as a newly reclassified
information service, the court said the Commission “whistle[d] past the graveyard” and suggested
without explanation that Section 224 would continue to apply.217
The court likewise held the Commission failed to adequately address how the RIF Order would
impact the Lifeline Program, which subsidizes service to low-income customers.218 The court
explained, by way of background, that the Act requires entities receiving Lifeline funding to be
eligible telecommunications carriers.219 The Commission added broadband to the Lifeline

206 Id. at 24–26.
207 Id. at 35.
208 Id. at 37–38.
209 Id. at 39.
210 Id. at 49–73.
211 Id.
212 Id. at 59, 65, 68.
213 Id. at 59–62.
214 Id. at 65–67.
215 Id. at 65–66; 47 U.S.C. § 224(c), (f).
216 Mozilla, 940 F.3d at 66; 47 U.S.C. § 224(a)(4), (f)(1).
217 Mozilla, 940 F.3d at 66–67.
218 Id. at 68–69.
219 Id. at 68.
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Program in 2016, which, the court said, “made sense” given BIAS’ designation as a
telecommunications carrier.220 The court held that the FCC failed, however, to consider in the RIF
Order how its reclassification would impact broadband’s eligibility for the program.221 The court
remanded the case to the FCC for further consideration of all three of these issues.222
Finally, the court vacated the RIF Order’s “sweeping” preemption of any state or local
requirements inconsistent with the Order’s deregulatory approach.223 At bottom, the court faulted
the Commission for failing to ground its preemption in any affirmative source of statutory
authority. The court explained that the FCC no longer has affirmative regulatory authority over
BIAS, now that it is classified as an information service, and the Commission could not preempt
state law in an area over which it does not have regulatory authority, absent an express
authorization from Congress.224 For a detailed discussion of Mozilla’s preemption analysis, see
CRS Report R46736, Stepping In: The FCC’s Authority to Preempt State Laws Under the
Communications Act, by Chris D. Linebaugh and Eric N. Holmes.
2020 Remand Order
As just discussed, although the court in Mozilla upheld the bulk of the RIF Order, it remanded
three discrete issues for the FCC’s further consideration: the Order’s effect on public safety, pole
attachments, and the Lifeline Program.225 As a result, the FCC issued an order in 2020 (2020
Remand Order) with further analysis on these issues.226 For each of the three matters, the 2020
Remand Order concluded that there was no basis to change the RIF Order’s conclusions.227
On public safety, the Commission concluded that the “light-touch” regulatory framework of the
RIF Order would actually benefit public safety communications by incentivizing BIAS providers
to invest in their networks, such as by upgrading their networks to 5G.228 The Commission
maintained that such upgrades would benefit public safety entities, as well as other users.229 The
agency further concluded that there is little evidence the RIF Order would cause harm to public
safety communications. It pointed out, among other things, that all major BIAS providers have
committed to maintaining internet openness and that there are strong business incentives for
providers to ensure the integrity of public safety communications.230 The Commission also
discounted a handful of situations where commenters alleged that public safety communications
were throttled, such as an incident in 2018 in which the Santa Clara fire department’s
communications were allegedly throttled after the department exceeded its data cap.231 The
Commission reasoned that the facts in these situations “are heavily contested” and that, even if

220 Id.
221 Id. at 69.
222 Id. at 86.
223 Id. at 74.
224 Id. at 74–76.
225 Id. at 86.
226 In the Matter of Restoring Internet Freedom, 35 FCC Rcd. 12328 (2020).
227 Id. at 12336.
228 Id. at 12344–48.
229 Id. at 12344.
230 Id. at 12349–50.
231 Id. 12353–55.
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the allegations in the Santa Clara case were true, the conduct would have been permitted under
the 2015 Open Internet Order, which did not prohibit data caps.232
Regarding pole attachments, the FCC concluded that the overall benefits of reclassifying BIAS as
an information service outweigh any drawbacks of certain BIAS providers no longer being
subject to Section 224’s pole attachment provisions. The FCC reasoned that the “vast majority”
of BIAS providers also offer cable services and would continue to be governed by Section 224.233
While broadband-only providers would not benefit from Section 224’s anti-discrimination
protections, the Commission noted that these providers could still negotiate agreements with pole
owners and that, since the RIF Order, there are only a small number of broadband-only providers
who indicated they experienced increased costs related to pole attachments.234 Consequently, the
Commission concluded that there is “no question” the overall benefits of Title I reclassification
outweighed any limited costs resulting from broadband-only providers losing their Section 224
pole-attachment protections.235
Finally, with respect to Lifeline, the FCC acknowledged that eligible recipients of Lifeline
funding must be common carriers,236 but it also pointed out that many BIAS providers offer voice
telephony service and thus maintain common carrier status.237 The Commission reasoned that
Section 254 of the Communications Act gives it broad authority to designate the types of services
or facilities supported through the Lifeline program,238 citing as support a 2014 decision of the
Tenth Circuit upholding an FCC order that required carriers to offer broadband capabilities in
order to receive support under a separate Section 254 program.239 The FCC thus concluded that,
even under the RIF Order, it may continue to use Lifeline to support BIAS services provided by
common carriers.240
Next Steps
While the Mozilla decision left the RIF Order in place, it may not be the final chapter in federal
net neutrality law. On July 9, 2021, President Biden issued an executive order urging the FCC to
adopt net neutrality rules similar to those in the 2015 Open Internet Order.241 FCC Chair Jessica
Rosenworcel—whom the Senate confirmed on December 7, 2021, for another five-year term242—
and Commissioner Geoffrey Starks may be open to this step, as they have both been critical of the
RIF Order.243 Gigi Sohn, whom President Biden has nominated to fill the existing vacancy on the

232 Id. at 12354.
233 Id. at 12371.
234 Id. at 12373.
235 Id. at 12376.
236 Id. at 12382.
237 Id. at 12381
238 Id. at 12380–81.
239 Id. at 12381.
240 Id. at 12380.
241 Exec. Order No. 14036, Promoting Competition in the American Economy, 86 Fed. Reg. 36987 (issued July 9,
2021).
242 167 Cong. Rec. S8,944 (daily ed. Dec. 7, 2021) (vote on Rosenworcel nomination).
243 See, e.g., 2018 Order, 33 FCC Rcd. at 846–48 (Statement of Jessica Rosenworcel, dissenting); Commissioner Starks
Statement on the Passage of the Save the Internet Act, FCC.gov (April 10, 2019),
https://www.fcc.gov/document/commissioner-starks-passage-net-neutrality-legislation.
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Commission, has also been critical of the RIF Order.244 The remaining two commissioners—
Brendan Carr and Nathan Simington—may be less inclined to change the FCC’s current policy.
Commissioner Carr voted for the RIF Order and Commissioner Simington has expressed
reservations about Title II net neutrality regulations.245 Consequently, until all five seats on the
Commission are filled, the FCC may be deadlocked on the issue of net neutrality.
Congress could decide to take the decision out of the FCC’s hands entirely, however, by enacting
a federal net neutrality statute. On July 28, 2022, some Members of Congress introduced the Net
Neutrality and Broadband Justice Act of 2022 in both the House and the Senate.246 These bills
would revise the Communications Act’s “telecommunications service” definition to include
BIAS.247 This definitional change would designate BIAS providers as telecommunications
carriers subject to Title II and remove the FCC’s discretion to change this classification. In the
116th Congress, a number of net neutrality bills were introduced.248 In 2019, the House of
Representatives passed the Save the Internet Act, which would have repealed the RIF Order and
restored the 2015 Open Internet Order.249 Other bills introduced in the 116th Congress, such as
H.R. 1101, H.R. 1006, H.R. 2136, and H.R. 1096, would have amended Title I to include net
neutrality requirements, such as prohibitions on blocking or throttling, and would have given the
FCC limited regulatory and enforcement authority to implement the requirements.250
Absent federal net neutrality requirements, states may increasingly fill the regulatory space with
their own net neutrality laws. Some states, such as California and Washington, have already
enacted net neutrality laws with requirements similar to the 2015 Open Internet Order.251 While
BIAS providers challenged California’s net neutrality law in court, arguing that federal law
preempts it, the Ninth Circuit rejected these preemption arguments in the case ACA Connects v.
Bonta.252 For further discussion of these laws and the legal challenges, see CRS Report R46736,
Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act, by
Chris D. Linebaugh and Eric N. Holmes and CRS Legal Sidebar LSB10693, ACA Connects v.
Bonta: Ninth Circuit Upholds California’s Net Neutrality Law in Preemption Challenge, by Chris
D. Linebaugh.

244 See President Biden Announces Key Nominations, WHITEHOUSE.GOV (Oct. 26, 2021),
https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/26/president-biden-announces-key-
nominations-8/ (nominating Gigi Sohn for FCC Commissioner); Gigi Sohn, Statement of Gigi Sohn on the FCC’s
December 14 Vote to Abdicate its Responsibility to Protect Consumers and Competition and Repeal the 2015 Net
Neutrality Rules, GIGISOHN.COM (Dec. 12, 2017), http://gigisohn.com/media/statement-gigi-sohn-fccs-december-14-
vote-abdicate-responsibility-protect-consumers-competition-repeal-2015-net-neutrality-rules/ (criticizing the RIF as a
“complete abdication of the FCC’s oversight over broadband Internet access [that] will leave every American Internet
user out in the cold”).
245 See 2018 Order, 33 FCC Rcd. at 843 (Statement of Brendan Carr); Commissioner Nathan Simington Comments on
Competition Executive Order, FCC.GOV (July 9, 2021), https://www.fcc.gov/document/commissioner-simington-
comments-competition-executive-order.
246 S. 4676, 117th Cong. (2022); H.R. 8573, 117th Cong. (2022).
247 Id.
248 H.R. 1644, 116th Cong. (2019); H.R. 1101, 116th Cong. (2019); H.R. 1006, 116th Cong. (2019); H.R. 2136, 116th
Cong. (2019); H.R. 1096, 116th Cong. (2019).
249 H.R. 1644.
250 H.R. 1101; H.R. 1006; H.R. 2136; H.R. 1096.
251 California Internet Consumer Protection and Net Neutrality Act of 2018, Cal. Civ. Code §§ 3100–3104 (2018);
Wash. Rev. Code § 19.385.020 (2018). California's law in fact goes beyond the 2015 Open Internet Order by
prohibiting zero rating practices. Cal. Civ. Code § 3101.
252 24 F.4th 1233 (9th Cir. 2022).
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Author Information

Chris D. Linebaugh

Legislative Attorney

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Congressional Research Service
R46973 · VERSION 3 · UPDATED
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