On April 27, 2017, FCC Chairman Ajit Pai released the draft text of a Notice of Proposed Rulemaking (the “Internet Freedom NPRM”) that would reverse the FCC’s 2015 Open Internet Order. The Open Internet Order, which has now been renamed the Title II Order, imposed a broad set of so-called “net neutrality” obligations on broadband ISPs on the theory that Internet access is “telecommunications service” subject to oversight by the FCC under the Title II / common carrier provisions of the Communications Act. The Open Internet Order / Title II Order, itself, reversed long-standing FCC precedent that Internet access is an information service and not a telecommunications service. So, the Internet Freedom NPRM is billed as a return to the status quo before the 2015 reclassification. The draft NPRM is scheduled to be voted on and adopted at the May 18, 2017 Open Commission Meeting.
Shortly after the draft NPRM was released, the U.S. Court of Appeals for the District of Columbia Circuit denied the petitions to rehear en banc its 2016 decision in U.S. Telecom Association v. FCC that affirmed the Open Internet / Title II Order. The en banc denial starts the 90-day clock for petitions seeking U.S. Supreme Court review, although it is unclear if any such petitions will be pursued in light of Internet Freedom NPRM’s stated intention to repeal the net neutrality rules imposed by the 2015 order. In fact, Chairman Pai released a statement shortly after the D.C. Circuit’s denial of the rehearing petitions in which he described that denial as confirming that “the FCC has the authority to classify broadband Internet access service as an information service,” as Pai proposes to do, and he confirmed that “the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations.”