Answering the DC Circuit's Remand of the Pole Attachment Question

According to the DC Circuit’s logic, the Federal Communications Commission’s jurisdiction over broadband Internet access services now resides in some sort of regulatory purgatory. This created a ripple effect across a wide variety of legal action items the FCC sought to resolve in its Restoring Internet Freedom Order (RIFO), including the question of who is eligible to take advantage of the pole attachment regime contained in Section 224 of the Communications Act. If, as the court believes, access to pole attachments is crucial to broadband deployment and, ultimately, increased competition, what path should the FCC take on remand? 

Conspicuously absent from the Majority’s pole attachment discussion is any recognition of the important fact that that prior to the 2015 Open Internet Rules carriers that provided broadband-only services were foreclosed from taking advantage of the statutory regime under Section 224. The correct legal question on remand is not whether the RIFO deprived broadband-only carriers of inalienable “statutory rights” as the court suggests, but rather whether these carriers had valid reliance interests that were harmed by the Commission’s 2018 choice to reverse the 2015 Open Internet Order? According to the court’s own opinion, the answer to that question in this particular case is a resounding “No.”