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.

Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity, Equity, & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Broadband funding under federal and state programs, including under the FCC’s Universal Service Fund (USF) and NTIA’s Broadband Equity, Access, and Deployment (BEAD) Program.
  • Representing broadcasters, media networks, and other content owners and producers on both existing and proposed FCC regulations and policies.
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ and other asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA ranks Matt within “Band 1” in his field and reports that he is a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.” It also quotes clients who praise him as “an outstanding regulatory lawyer…[who] understands the intersection between what’s important for the client’s operations and how the law impacts those operations.”