FCC Seeks to Refresh Net Neutrality Docket

In Mozilla Corp. v. FCC,  the U.S. Court of Appeals for the District of Columbia Circuit upheld the vast majority of the Federal Communications Commission’s 2017 decision to end net neutrality protections. However, the court also remanded three discrete issues for further consideration by the FCC. On February 6, 2020, the D.C. Circuit denied all pending petitions for rehearing, and the Court issued its mandate on February 18, 2020. With this Public Notice, the Wireline Competition Bureau seeks to refresh the record regarding the issues remanded to the FCC by the Mozilla Court.

Public Safety. First, the FCC seeks to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect public safety. 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 rules adopted by the FCC in the Title II Order? Are concerns or consequences of broadband providers’ possible actions different for public-safety-topublic-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?

Pole Attachments. The FCC seeks 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. To what extent are ISPs’ 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, following the Order, “increase[d] pole attachment rates or inhibit[ed] broadband providers from attaching equipment”? How could we use metrics like increases or decreases in broadband deployment to measure the impact the Order has had on pole attachment practices? Are there any other impacts on the regulation of pole attachments from the changes adopted in the 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?

Lifeline Program. 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 the 2017 Lifeline NPRM, 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.” How, if at all, does the Mozilla decision bear on that proposal, and should the FCC proceed to adopt it? For example, the 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?

(WC Docket Nos. 17-108, 17-287, 11-42)

Comment Date: March 30, 2020

Reply Comment Date: April 29, 2020