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Net Neutrality

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Net Neutrality Net Neutrality Federal Status Net Neutrality Defined In December 2017, the Federal Communications Commission (FCC) According to the Congressional issued an order to largely reverse its 2015 order that classified Research Service (CRS), “net broadband internet access as a telecommunication service (“Title neutrality” does not have a single II”). In so doing, the FCC generally (1) reversed the net neutrality accepted definition, but it generally provisions in the 2015 order that prohibited throttling, blocking, and provides that owners of the paid prioritization, among other things and (2) reclassified internet networks that compose and provide service as an information service (“Title I”), subjecting internet access to the internet (e.g., internet service providers (ISPs, e.g., Comcast Xfinity, AT&T Internet, service providers (ISPs)): Frontier) to a less stringent regulatory framework. Under the new order, ISPs are no longer prohibited from blocking, should not control how throttling, or paid prioritization, but must disclose their practices consumers lawfully use that concerning these activities, as well as affiliated prioritization, network and congestion management, and commercial terms of service. Under a memo of understanding with the FCC, the Federal Trade should not be able to Commission will investigate and take enforcement action as discriminate against content appropriate against ISPs for unfair, deceptive, and otherwise provider access to that unlawful acts or practices. network. The new order is effective June 11, 2018. State Status Connecticut state law does not specifically address net neutrality issues. Connecticut’s attorney general has joined attorneys general from at least 20 other states to ask a federal appeals court to overturn the FCC’s recent order, arguing, among other things, that it is arbitrary, capricious, and an abuse of the agency’s discretion to regulate. September 24, 2018 2018-R-0149 State Responses Washington was the first state to pass legislation in response to the FCC’s 2017 order. HB 2282 prohibits internet service providers from blocking, throttling, or engaging in paid prioritization and makes doing so a violation of the state’s consumer protection laws. Oregon also passed a bill that, among other things, prohibits public bodies from contracting with ISPs that block, throttle, or engage in paid prioritization (HB 4115, effective April 9, 2018). The National Regulatory Research Institute tracks state and local actions on this issue. The question of whether and to what extent states can regulate on this issue has yet to be answered conclusively. Legislation in Connecticut The FCC’s 2017 order preempts states from enacting rules In Connecticut, the Energy and Technology or requirements for broadband internet repealed under the Committee held an informational forum on order or that are more stringent than the order, arguing, net neutrality in February 2018. At least among other things, that such rules would be inconsistent three bills considered during the 2018 with the federal deregulatory approach taken under the regular session contained provisions related order. Proponents of state net neutrality laws argue, to net neutrality, but none became law (SB among other things, that the FCC does not have the 2, HB 5260, and SB 336 as amended by authority to preempt such laws. Various reports note that Senate “A”). state action on net neutrality may face legal challenges based on preemption as well as commerce clause arguments. Title I and Title II The federal Telecommunications Act of 1996 distinguishes between telecommunications carriers that provide basic services (Title II or “common carrier”) and information-service providers that provide enhanced services (Title I). The FCC’s 2015 order classified internet services as telecommunications services under Title II of the act, allowing the agency to impose the net neutrality requirements included in the order. The FCC also used its authority to forbear (i.e., refrain from enforcing) other aspects of Title II (e.g., rate regulation) for internet services. The FCC’s 2017 order reclassified internet services as information services under Title I, the classification largely in place prior to the 2015 order. This classification generally subjects ISPs to a less stringent regulatory framework and prohibits them from being regulated as common carriers. The way the FCC has classified broadband internet services has changed over time. Classifications prior to the 2015 order are discussed in OLR Report 2014-R-0033. Learn FCC Restoring Internet Freedom Order CRS, “The Net Neutrality Debate: Access (2017) to Broadband Networks,” May 2018 More FCC Open Internet Order (2015) Analyst: Mary Fitzpatrick Connecticut General Assembly 860-240-8400 | www.cga.ct.gov/olr .
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