Client Alerts  - Telecommunications May 10, 2024

FCC Reestablishes Net Neutrality Rules

FCC order changes the classification of broadband Internet access services to a telecommunications service from an information service.

On April 25, 2024, the Federal Communications Commission (FCC) voted 3-2 to adopt an order (the “Order”) that would reestablish the FCC’s authority to classify broadband Internet access service (“BIAS”) as a telecommunications service and restore net neutrality rules, which prohibit internet service providers from blocking or degrading access to users.1 Classifying BIAS as a telecommunications service under Title II of the Communications Act of 1934 would reestablish broadband as a Title II service, giving the FCC authority to provide greater federal oversight over broadband.2 The Order will result in broadband being treated as an essential service and reinstating net neutrality protections and FCC oversight over BIAS.3 The FCC plans to publish the new rules in the Federal Register in the near future, and they would go into effect 60 days after publication there.

The Order is intended to provide net neutrality protections including giving the FCC the authority to prevent broadband service providers from blocking traffic, slowing down content or engaging in paid prioritization of content (creating pay-to-play internet fast lanes). The Order also gives the FCC greater oversight over broadband outages and broadband providers’ treatment of online speech. The Order expands the FCC’s authority regarding foreign-owned companies deemed to be national security threats.4 Similar to how, earlier this year, the FCC protected the nation’s security in relation to voice services by revoking the authority of certain entities that are majority-owned and controlled by the Chinese government, the FCC will be able to take similar action relating to BIAS providers.5

There has already been pushback including from some in the telecommunications industry. Some Republican Congress members prepared a letter dated April 23, 2024 in which they argue that the FCC exceeded its congressional authority by subjecting broadband to public utility regulation.6 Commissioner Brendan Carr challenged the agency’s authority to return to net neutrality under the U.S. Supreme Court’s 2022 decision in West Virginia v. Environmental Protection Agency arguing that the authority for Congress to regulate broadband providers must be “explicit” in the FCC’s governing statute.7 Pushback from some in the telecommunications industry and from Republicans on Capitol Hill is likely to continue.8

The Order will soon become effective, and it will likely be challenged if it is unedited post-adoption.9 Some argue that, if challenged, the new net neutrality rules would likely be assessed using the Major Questions Doctrine rather than the “Chevron deference doctrine”.10 However, Chevron deference has been previously applied to the FCC’s prior internet access classifications due to statutory ambiguity. In NCTA v. Brand X Services, 545 U.S. 967 (2005), the Supreme Court upheld an FCC order that classified BIAS as “information services.” In its application of the Chevron doctrine, the Court found that the Communication Act’s use of the terms “offering” and “telecommunications service” was ambiguous.11 Despite the Chevron doctrine’s use in a similar matter in the past, the Major Questions Doctrine’s jurisprudence has developed in the Supreme Court since 2019 and provides an alternative analytic framework that a court might choose to adopt.12

Some in the telecommunications industry have expressed concerns that mobile network slicing may be affected by the new net neutrality rules as they would introduce regulatory uncertainty.13 Network slicing is a cutting-edge technology that allows for the possibility to split a single physical 5G network into several virtual networks that can be used by both consumer and enterprise segments. Each virtual network can be associated with specific characteristics such as latency, security or priority, which can be individually optimized for the function of the slice.14 The practice of network slicing appears to conflict with the new net neutrality rules’ prevention of internet fast lanes for entities that can pay more.15 The FCC declined to classify network slicing “as inherently either BIAS or non-BIAS data services” leaving ambiguity surrounding how the FCC will treat network slicing under the new net neutrality rules.16

The new net neutrality rules will likely have an effect on New York State’s treatment of net neutrality and the ability of entities to regulate rates since the new net neutrality rules forbear all direct rate regulation. However, the new rules also state that it is within the FCC’s discretion “to proceed incrementally” which will “guard[ ] against any unanticipated and undesired detrimental effects on broadband deployment that could arise.”17 The new net neutrality rules may result in the pre-emption of certain New York State laws. For example, a recent ruling that New York’s Affordable Broadband Act (ABA), which requires internet service providers to offer broadband internet to low-income New Yorkers at reduced prices, is not preempted by federal law could be preempted by the new net neutrality rules, in part because the classification of broadband will change from an information service to a telecommunications service and allow the FCC greater oversight of BIAS.18

Additional Assistance

For further assistance, please contact a member of our Telecommunications Industry Team or the Phillips Lytle attorney with whom you have a relationship.

1 See News Release, FCC Restores Net Neutrality (Apr. 25, 2024), FCC,; Declaratory Ruling, Order, Report and Order, and Order on Reconsideration (“Declaratory Ruling”), WC Docket Nos. 23-320, 17-108, FCC (Apr. 4, 2024),
2 See Declaratory Ruling at 4, para. 2.
3 See Net Neutrality, FCC, (last visited May 8, 2024).
4 Five Facts About Net Neutrality Protections, FCC (Apr. 24. 2024),
5 See Declaratory Ruling at 16, para. 33.
6 See John Hendel, FCC Reinstates Net Neutrality, POLITICO (Apr. 25, 2024),; Republican Hill Letter Opposing Title II, WC Docket No. 23-320 (Apr. 23, 2024), FCC Electronic Comment Filing System,
7 See Steve Brachmann, FCC Restores Net Neutrality Regime Amid Criticism, IP WATCHDOG (Apr. 29, 2024),
8 See id.
9 Some in the telecommunications sector oppose the new rules and previously opposed the first iteration of the FCC’s net neutrality rules and challenged them via litigation. See Jon Brodkin, Tom Wheeler Defeats the Broadband Industry: Net Neutrality Wins in Court, ARS TECHNICA (June 14, 2016),
10 Under the Major Questions Doctrine, agency action that implicates questions of major economic and political significance require a clear statement from Congress supporting the agency’s action. See Seth L. Cooper, The FCC’s Internet Regulation Plan Fails the Major Questions Doctrine, 19 Perspectives from FSF Scholars 1, Free State Found. (Apr. 12, 2024),
11 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 974, 977 (2005).
12 See West Virginia v. EPA, 597 U.S. 697 (2022); Biden v. Nebraska, 143 S. Ct. 2355 (2023).
13 See Mike Dano, T-Mobile Warns of Friction Between Net Neutrality and Network Slicing, LIGHT READING (Jan. 18, 2024),
14 See Haseeb Akhtar et al., Network Slicing for 5G Success, ERICSSON (Oct. 26, 2023),
15 Dano, supra note 13.
16 Declaratory Ruling at 131, para. 198.
17 Declaratory Ruling at 235, n.1538.
18 See N.Y. State Telecomms. Ass’n, Inc. v. James, No. 21-1975, 2024 WL 1814541 (2d Cir. Apr. 26, 2024).

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