FCC Needs Rules to Preserve an Open Internet

In July, CompTIA filed comments with the FCC in response to its Restoring Internet Freedom NPRM.  As you may know, the FCC released this NPRM in May, and its primary point of focus was a proposal to reclassify broadband internet access service (BIAS) as an information service. I wrote about the FCC’s proposal at length back when it was released. The most talked-about portion of the NPRM, however, was whether the Commission should retain some form of the net neutrality rules that it passed back in 2015. In our comments CompTIA supported retention of net neutrality rules, but acknowledged that the Commission need not retain the exact rules on the books today to preserve an open internet.

The crux of our comments was that the FCC needs rules in place to prevent blocking, throttling and at least some forms of paid prioritization. At this point in time there is near-unanimous support for no-blocking and no-throttling rules, but things get a little trickier when it comes to paid prioritization. Paid prioritization is not inherently bad, but prioritization arrangements between ISPs could be used in such a way to harm competition and consumer choice, and we argued that these latter types of arrangements should not be allowed. We also noted that there is a path forward for the Commission to retain these rules even if it chooses to reclassify BIAS as an information service.

In 2014, before deciding to reclassify BIAS as a telecommunications service, the FCC proposed retaining the information service classification and passing new net neutrality rules (their previous rules had just been overturned by the Court of Appeals for the DC Circuit), an approach CompTIA supported at the time. Our recent comments argued that today the Commission could follow a similar approach to its 2014 proposal to preserve an open internet if they choose to reclassify BIAS. This approach would require ISPs to provide their customers access to all legal online content at a sufficiently high level of service, and would thus prohibit blocking and throttling. It would also include a rule that prohibits commercially unreasonable practices that threaten the internet’s openness, such as anticompetitive paid prioritization arrangements. We believe that these rules would protect consumers and competition while promoting innovation.

Neither the information service nor the telecommunications service classification is perfect for broadband, but we noted that there are benefits and drawbacks to both. We support the FCC’s current net neutrality rules, but reclassification would resolve other issues such as restoring the FTC’s authority to regulate ISPs’ privacy and data security practices, something CompTIA has strongly supported in the past. Ultimately legislation is the best path forward for net neutrality rules, as it’s the only way to achieve the necessary level of certainty for both consumers and industry. But until legislation is passed, we believe that the FCC needs to have rules governing blocking, throttling and paid prioritization to keep the internet open, regardless of the classification of BIAS. For more information, please contact Matthew Starr.