Today, as expected, the U.S. Federal Communications Commission (“FCC”) adopted an order repealing the agency’s 2015 net neutrality rules and changing the legal framework that governs Internet Service Providers (“ISPs”). The vote split along party lines, with the agency’s three Republicans voting in favor and its two Democrats dissenting.
Once today’s order goes into effect, ISPs will no longer be subject to rules or FCC oversight as to what they can or cannot do in delivering online traffic to and from consumers at home and on their mobile devices. The FCC did, however, retain a requirement that ISPs publicly disclose whether they engage in certain practices, such as accepting consideration in exchange for prioritizing some sites and services over others (a practice known as “paid prioritization”).
Life sciences, technology, and health care companies developing and marketing digital health solutions should be aware that some supporters of the FCC’s action have argued that the repeal of restrictions on paid prioritization will allow ISPs to partner with digital health applications for optimized network performance within the U.S. As an example, the FCC has cited a commenter expressing the view that paid prioritization could provide improved access to “remote health-care monitoring” and “health service delivery by mobile networks.” Opponents, however, claim that the FCC’s action will allow ISPs to act in ways that could limit the ability of some online applications—whether in digital health or other sectors—to survive and thrive online.
The final text of the FCC’s order is not yet available, but it is not expected to deviate significantly from a draft released last month. Opponents are expected to challenge it in court in early 2018, and debates over net neutrality will continue in Congress as well. Covington’s Digital Health team will continue to follow these FCC developments given the potential impact on certain digital health products and services.