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Round-Up for the Week of February 17-21, 2020

OK, maybe "wants" is a stretch.

In early October 2019, the United States Court of Appeals for the District of Columbia Circuit issued its ruling in Mozilla Corporation vs Federal Communications Commission, the case that challenged the Federal Communications Commission's repeal of network neutrality rules (the Restoring Internet Freedom Order) and reclassification of broadband internet access service as an "information service" rather than a "telecommunications service." The mixed decision generally upheld the repeal -- but with caveats. The court remanded the net neutrality order back to the FCC on three discrete issues: public safety, pole attachments, and Lifeline. Earlier this month, the court also declined to rehear the case so in a public notice released this week, the FCC's Wireline Competition Bureau seeks to refresh the record regarding the issues remanded to the FCC by the District of Columbia Circuit Court. Here are the questions the FCC is asking.

I. "The Order failed to examine the implications of its decisions for public safety"

Congress created the FCC for the purpose of, among other things, “promoting safety of life and property through the use of wire and radio communications.” But challenges to the net neutrality repeal order argued that the FCC failed to "consider the implications for public safety of its changed regulatory posture." The D.C. Circuit agreed: "The [FCC's] disregard of its duty to analyze the impact of the [order] on public safety renders its decision arbitrary and capricious in that part and warrants a remand with direction to address the issues raised."

Now, the FCC seeks to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect public safety. Specifically, the Wireline Competition Bureau asks:

• Could the network improvements made possible by prioritization arrangements benefit public safety applications—for example, by enabling the more rapid, reliable transmission of public safety-related communications during emergencies? 
• Do broadband providers have policies in place that facilitate or prioritize public safety communications? 
• To what extent do public safety officials (at both the state and local level) even rely on mass-market retail broadband services covered by the Restoring Internet Freedom Order (i.e., services that only promise “best efforts” in the delivery of content), rather than dedicated networks with quality-of-service guarantees (i.e., enterprise or business data services) for public safety applications?
• With respect to public safety incidents described in the Mozilla decision and elsewhere, would the providers’ allegedly harmful conduct have been prohibited under the old network neutrality rules?
• Are concerns or consequences of broadband providers’ possible actions different for public-safety-to-public-safety communications, such as onsite incident response or Emergency Operations Center communications, versus public safety communications made to or from the public? 
• Do the FCC and other governmental authorities have other tools at their disposal that are better suited to addressing potential public safety concerns than classification of broadband as a Title II service?
• Are there any other impacts on public safety from the changes adopted in the Restoring Internet Freedom Order?
• Finally, how do any potential public safety considerations bear on the FCC’s underlying decision to classify broadband as a Title I information service?

II.  "The Order does not sufficiently explain what reclassification will mean for regulation of pole attachments"

The D.C. Circuit agreed with litigants that the FCC, without reasoned consideration, took broadband outside the current statutory scheme governing pole attachments which covers telecommunications services, not information services. The FCC wants to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the regulation of pole attachments in states subject to federal regulation. The FCC asks:

• To what extent are internet service providers’ pole attachments subject to FCC authority in non-reverse preemption states by virtue of the ISPs’ provision of cable or telecommunications services covered by section 224?
• What impact would the inapplicability of section 224 to broadband-only providers have on their access to poles?
• Have pole owners “increase[d] pole attachment rates or inhibit[ed] broadband providers from attaching equipment”?
• How could the FCC use metrics like increases or decreases in broadband deployment to measure the impact the Restoring Internet Freedom Order has had on pole attachment practices?
• Are there any other impacts on the regulation of pole attachments from the changes adopted in the Restoring Internet Freedom Order?
• Finally, how do any potential considerations about pole attachments bear on the FCC’s underlying decision to classify broadband as a Title I information service?

III. "The agency did not adequately address ... concerns about the effects of broadband reclassification on the Lifeline Program"

Finally, litigants challenged the Restoring Internet Freedom Order on the ground that reclassification would eliminate the statutory basis for including broadband service in the FCC's Lifeline Program which subsidizes low-income consumers’ access to certain communications technologies. The D.C. Court found that the FCC completely failed to explain how its authority could extend to broadband now that broadband is no longer considered to be a common carrier service. 

The FCC seeks to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the Lifeline program. In particular, the FCC seeks to refresh the record on its authority to direct Lifeline support to eligible telecommunications carriers (ETCs) providing broadband service to qualifying low-income consumers. In 2017, the FCC proposed that it “has authority under Section 254(e) of the Act to provide Lifeline support to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service,” and that “[t]his legal authority does not depend on the regulatory classification of broadband Internet access service and, thus, ensures the Lifeline program has a role in closing the digital divide regardless of the regulatory classification of broadband service.” Now the FCC asks:

• How, if at all, does the Mozilla decision bear on that proposal, and should the FCC proceed to adopt it?
• The D.C. Court in Mozilla invited the FCC to explain how its authority under section 254(e) could extend to broadband, “even ‘over facilities-based broadband-capable networks that support voice service' now that broadband is no longer considered to be a common carrier.” The FCC seeks to refresh the record in light of the court’s invitation.
• The FCC also asks parties to refresh the record on whether there are other sources of authority that allow the FCC to provide Lifeline support for broadband services. 
• Are there any other impacts on the Lifeline program from the changes adopted in the Restoring Internet Freedom Order?
• Finally, how do any potential considerations about the Lifeline program bear on the FCC’s underlying decision to classify broadband as a Title I information service?

IV. How to Participate in the Proceeding

The public now has the opportunity to weigh in on these issues. The first round of public comments ends March 30, 2020. A second round, which allows commenters to respond to each other's filings, ends April 29. Timing on a decision/new action by the FCC is a bit murky because the DC Court basically asked the agency to reconsider these issues, but did not hold up implementation of the order. The FCC faces no official deadline by which to act so it could be months before we see any kind of decision. 

Of note, this proceeding is a bureau-level public notice, not a Notice of Proposed Rulemaking adopted by the full FCC. Although that may seem like inside baseball, it points towards how the FCC is dealing with the remand. This proceeding seems like just a first step to collect public input on the impact of the Restoring Internet Freedom Order -- not proposals for changing rules. Any changes would have to come through another proposal and comment period. So the FCC is asking. It might listen. But we're a long way from any action.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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