Analyzing the 2015 Network Neutrality Order

Regulation Watch

Analyzing the 2015 Network Neutrality Order

On Feb. 26, 2015, the FCC (News - Alert) voted, by a 3-2 margin, to adopt network neutrality rules, relying on its statutory authority under Title II of the Telecommunications Act of 1996 that governs common carriers. The rules would reinstate, with some changes, the open Internet rules vacated by the U.S. Court of Appeals for the D.C. Circuit in 2014, which found that the FCC’s 2010 Open Internet order failed to show that the commission had the statutory authority to treat broadband Internet access providers as common/telecommunications carriers.

Importantly, the order reclassifies broadband as a telecommunications service and mobile wireless service as a commercial mobile radio service, although the FCC intends to forbear from applying certain telecommunications requirements on broadband providers such as rate regulation, tariffing, unbundling, USF contribution, and other similar requirements. It will, however, apply provisions governing consumer privacy, pole attachments, disability access, and other requirements traditionally applied to common carriers.

The order reinstates the bright-line rules that the D.C. Circuit vacated, including restrictions on blocking and throttling of Internet traffic. The order also bars paid prioritization and enhances transparency rules. The rules are subject to an exception for “reasonable network management” (other than paid prioritization) that recognizes differing needs for wireless and wireline networks, and also exempts specialized or “managed” services not carried over the public Internet portion of broadband providers’ networks. 

The order is likely to be challenged in court, so it is unclear at this time whether, to what extent, and when, the network neutrality rules will actually become effective. Voice over Internet protocol, Internet service providers, managed service, cloud, and other similar providers that offer services to customers over the public Internet should pay particular attention to this issue given the importance of broadband Internet delivery of their services. 

William B. Wilhelm (News - Alert) is a partner and Jeffrey R. Strenkowski is counsel at the global law firm of Morgan Lewis & Bockius LLP (

Edited by Dominick Sorrentino