Privacy & Information Security Law Blog

Recently, FCC Chairman Ajit Pai released a draft of the Restoring Internet Freedom Order (the “Order”). If adopted, the Order would repeal the rules put in place by the FCC in 2015 that prohibit high-speed internet service providers (“ISPs”) from stopping or slowing down the delivery of websites and from charging customers extra fees for high-quality streaming and other services.

The Order would reverse the FCC’s 2015 landmark decision to classify broadband Internet access as a “telecommunications service” subject to the regulatory obligations under Title II of the Communications Act of 1934 (the “Act”). By reclassifying broadband Internet as an “information service” under Title I of the Act, the Order asserts that this “light-touch” approach will “promote investment and innovation” by removing the application of “laws of a bygone era” to broadband Internet service. Additionally, the Order would require ISPs to disclose their network management practices, performance and commercial terms of service to consumers, to provide individual consumers the ability to decide what broadband service best meets their needs.

The Order also would return jurisdiction to regulate broadband privacy and data security practices to the FTC, which, according to the Order, would “enable the FTC to apply its extensive privacy and data security expertise to provide the uniform online privacy protections that consumers expect and deserve.” In 2016, the FCC adopted Broadband Consumer Privacy Rules that required ISPs to provide consumers with increased choice, transparency and security over their personal information. Earlier this year, Congress voted to nullify the Privacy Rules, prohibiting the FCC from adopting anything “substantially similar.” Acting FTC Chairman Maureen K. Ohlhausen issued a statement in response to the draft Order, stating that the FTC “stands ready to protect broadband subscribers from anticompetitive, unfair, or deceptive acts and practices just as we protect consumers in the rest of the Internet ecosystem.”

The FCC is scheduled to vote on the draft Order on December 14, 2017.