FCC MDU Competition Rules After Broadband Reclassification: What ISPs Should Know

Under the Federal Communications Commission's (FCC) recent Open Internet Order (OI Order) reclassifying broadband internet access service as a telecommunications service, stand-alone internet service providers (ISPs) will need to comply with the FCC's existing rules governing provision of telecommunications services that, among other things, prohibit exclusive access and service contracts in residential and commercial multi-tenant environments (MTEs, sometimes also referred to as "MDUs" for residences). As Commissioner Carr noted in his dissent, "the Order offers no examples of broadband-only ISPs exploiting their status to engage in anti-competitive behavior with respect to MTEs, much less any evidence of a widespread market failure attributable to the existing scope of the MTE regime." Nevertheless, unless the 6th Circuit further delays the effective date of the OI Order, the rules governing ISP contracts for exclusive service or access will become effective August