Yesterday, the Federal Communications Commission (“FCC”) circulated a new Net Neutrality Order for consideration at its October meeting.  This draft Order on Remand does not mark a change in the FCC’s Net Neutrality policy; rather, it responds to several issues raised by the D.C. Circuit in Mozilla v. FCC, which reviewed the 2017 Restoring Internet Freedom Order.

The draft Order on Remand addresses the points raised by the D.C. Circuit in Mozilla but otherwise affirms the outcome of the Restoring Internet Freedom Order.  That Order rolled back Obama-era Net Neutrality regulations and largely deregulated broadband Internet service provider practices.

In Mozilla, the D.C. Circuit vacated the portion of the Restoring Internet Freedom Order that preempted state Net Neutrality regulations and remanded the Order to the FCC for further consideration of the Order’s effect on (1) public safety; (2) the FCC’s ability to regulate pole attachments; and (3) the FCC’s Lifeline Program, which subsidizes low-income consumers’ access to communications technologies, including broadband Internet access service.  Earlier this year, the FCC issued a Public Notice seeking comment on these issues, and the draft Order on Remand concludes, based on the record developed, that there is no basis for altering the Restoring Internet Freedom Order.

The draft Order on Remand confirms that the Restoring Internet Freedom Order is the final word on Net Neutrality, at least for now, at the federal level.  As discussed in our August post, the focus in the Net Neutrality debate has now shifted largely to the states.  On September 24, Vermont state officials agreed to halt the enforcement of the state’s Net Neutrality policies pending the resolution of pending preliminary injunction motions in the challenges to California’s Net Neutrality law.  In California, the U.S. Department of Justice and several broadband industry groups have until October 14 to file reply briefs in support of the preliminary injunction motions they filed on August 5.  The U.S. District Court for the Eastern District of California has yet to schedule a hearing on these motions.

Of course, the outcome of the November Presidential election also will have an impact on the direction of Net Neutrality policies and FCC policy towards its authority over broadband generally.  Republican and Democratic administrations have taken very different approaches to regulation of broadband providers, so it would not be surprising to see these issues re-visited if there is a change in which party controls the FCC.

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Photo of Matthew DelNero Matthew DelNero

Matt DelNero works with companies in the telecommunications, technology and media sectors—advising them in policy development, regulatory compliance, and commercial transactions, among other settings.

Photo of Yaron Dori Yaron Dori

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice…

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice group and currently serves as a member of the firm’s eight-person Management Committee.

Yaron’s practice focuses on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

He represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC)—and the U.S. Congress in connection with a range of policy issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications and data privacy regulation. His unique experience in telecommunications, privacy, and consumer protection enables him to advise clients on key business issues in which these areas intersect.

With respect to telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The California Consumer Privacy Act (CCPA);
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Online Behavioral Advertising;
  • Online advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on FCC (Enforcement Bureau), FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.