The Federal Communications Commission has released a long-awaited notice of proposed rulemaking (NPRM) with the goal of bringing back its 2015 net neutrality rules that classified broadband internet as a common carrier and prohibited the blocking, throttling, and paid prioritization of content. The 2015 rules, promulgated under the Obama administration, were repealed in 2017 by former Commissioner Ajit Pai.

Though many expected President Biden’s 2020 victory to result in re-adoption of the 2015 rules, President Biden did not appoint a fifth Commissioner to the FCC until recently, leaving the agency at a 2-2 standstill down party lines for the past two years. With the appointment of Commissioner Anna Gomez, Biden’s FCC is now at full operating capacity to move forward on major actions and reestablish the net neutrality rules. And with the NPRM, the Commission has demonstrated that there are a multitude of changed conditions that necessitate re-adopting the 2015 rules: the NPRM establishes “the increased importance of [broadband internet access service] to consumers since the onset of the pandemic,” that consumers’ perception of broadband internet access service as a standalone telecommunications service is “more pronounced now than it was in 2015,” and that “developments in recent years have highlighted national security and public safety concerns arising in connection with the U.S. communications sector[.]”Continue Reading FCC Issues Draft Net Neutrality Order For October 2023 Meeting

On July 9, 2021, President Biden signed Executive Order 14036 – Promoting Competition in the American Economy.  The wide-ranging Executive Order includes 72 initiatives that aim to increase enforcement of existing antitrust laws and other consumer protection regulations. The Order targeted at least 15 federal departments, offices, and agencies, potentially affecting a wide panoply of American industries. It is designed to restore competition in the American economy and reverse the effects of corporate consolidation. The Biden Administration hopes this will drive down prices for consumers, increase wages for workers, and facilitate innovation.

The Executive Order proposes to address these problems by “enforc[ing] the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.” The Executive Order also “reaffirms that the United States retains the authority to challenge transactions whose previous consummation was in violation of the [antitrust laws.]”

This Executive Order represents a watershed moment in competition policy in the United States, as the White House has directed the entire U.S. government to more aggressively enforce the antitrust laws. The Executive Order has far-reaching implications for antitrust enforcement and communications law alike as it calls for more rigorous antitrust enforcement by the Department of Justice and the Federal Trade Commission, and seeks new consumer protection regulations through the Federal Communications Commission, the Federal Trade Commission, and the Departments of Transportation and Commerce.Continue Reading President Biden Signs Sweeping Executive Order Promoting Competition with Far-Reaching Effects on Antitrust Enforcement and Communications Law

Commercial practices of Internet Services Providers (ISPs) to exclude certain applications and services from being counted against customers’ data caps, a practice known as Zero-Rating, are arguably creating an economic incentive for users to prefer zero-rated apps and services. These commercial behaviors are under scrutiny on both sides of the Atlantic, but the way regulators are actually tackling the issue differs. While in the U.S., California’s net neutrality law prohibits ISPs from engaging in discriminatory Zero-Rating, the European Union’s net neutrality law only sets up a general obligation of equal traffic treatment.  AT&T’s recent decision to end its Zero-Rating program across the U.S. shows that U.S. ISPs are ready to adapt their commercial strategies to strict net neutrality rules.

The European Union (EU) is dealing with Zero-Rating through the prism of the first court case from the Court of Justice of the European Union (CJEU) on the topic.Continue Reading How to Achieve Net Neutrality? Cornering Zero Rating Has No Geo Cap