March 5, 2015 - Key Questions Concerning New FCC "Net Neutrality" Order
Below are key questions and issues to consider in reviewing the final Federal Communications Commission ("FCC") Order imposing certain Title II obligations on wireline and wireless internet service providers ("ISPs") and/or Internet services, whenever the Order’s text is finally released.
Licensing - Cable/CLEC. Will current cable/CLEC telecom entry authorizations with State Public Utility Commissions ("PUCs") have to be amended to encompass Internet services or affiliates? Will state prohibitions on PUC regulation of VOIP affect this?
Licensing - Other. Will State PUCs require other ISPs and municipal broadband providers to obtain telecom entry authorizations from State PUCs in order to remain operating?
Tariff/Price Sheets/Other Regulatory Requirements. Will the rates and terms of service for retail Internet offerings need to be provided to State PUCs and subject to PUC filing requirements for all material changes? Will State change of rates and service notification rules be required? Similarly, will related telecom obligations (such as filing of emergency plans, where applicable) also apply to ISPs? Or, alternatively, will the FCC’s forbearance preempt any such local regulation even if still applicable to classic telecom services?
PUC Assessments. To the extent PUC assessments are imposed on cable/telecom business, will Internet revenues be included in telecom revenues for PUC assessment purposes?
E-911 Assessments. Will Internet revenues be included for E-911 state assessment purposes?
USF. What is the practical impact of the "partial" inclusion in federal or state (as applicable) universal service fund assessments for landline and/or wireless Internet services? Commissioner Clyburn notes that there is some preemption of state USF programs. What is the scope of that? There is discussion that USF issues will be discussed in a separate proceeding which also may affect program scope.
Pole/Conduit Attachments. What are the practical implications of giving Internet-only ISPs a new and potentially enforceable right to attach to utility poles/conduit pursuant to state/federal law?
Internet Reporting. To what extent will State PUCs seek to order State-specific versions of Internet data on network management, promotional rates, fees, etc. that will be required to be provided federally under new FCC Order and, if so, to what extent will state level providers be able to benefit from the 100,000 customer minimum exemption in the FCC Order?
State PUC Investigations of Paid Prioritization, Discrimination, Etc. To what extent will State PUCs undertake investigations of prohibited practices under the FCC order occurring in their states and will any such efforts be lawful?
State Consumer Complaints re: Internet Services, Paid Prioritization, Etc. In States such as MA and CT that retain authority to process customer telecom complaints, to what extent will Internet complaints from consumers be processed with the potential for ordering remedies?
Interconnection Preemption. Will the FCC directive claiming authority over interconnection using Internet transmission conclusively preempt and effectively eliminate claims that state law statutes can prohibit state PUCs from regulating VOIP services? Will FCC be exclusive forum for deciding Interconnection or will state PUCs have authority regarding Internet interconnection?
State/Local Tax Issues. Will the FCC Order necessitate changes to classifications or allocation methodologies under State tax law? Conversely, can providers rely on the Internet Tax Freedom Act as a safe harbor protecting them from any such changes?
Lifeline Changes. Will the FCC Order lead to Internet-only Lifeline services subsidies or mixed telecom-Internet service subsidies beyond the current limited programming permitted by FCC? Will it cause additional delays or additional proceedings to ongoing State licensing dockets.
Other Impacts. To what extent will standards and principles articulated in the Order end up getting used by Attorneys General or State Consumer Protection agencies in consumer protection actions or class action lawyers against providers? To what extent will they change voluntary guidelines in wireless industry and other industries?