FCC's Net Neutrality Proceeding Too Narrow, Vague to Address Remand

In Mozilla v FCC, the United States Court of Appeals for the District of Columbia Circuit reviewed the Federal Communications Commission’s 2018 “Restoring Internet Freedom” Order, in which it reclassified broadband internet access service (“BIAS”) as an “information service” and attempted to preempt state laws addressing net neutrality. The court vacated the portion of the Order that claimed authority to preempt state laws, and remanded the Order to the FCC because the FCC had failed to consider the Order’s implications for public safety, pole attachments, and the Lifeline program. To provide adequate notice of its intended actions and to demonstrate its openness to alternative conclusions, the FCC must conduct its procedure anew, including consideration of public comments addressing the Commission’s conclusions with respect to public safety, pole attachments, and Lifeline. Without agency conclusions and the reasoning to support them, the public cannot provide meaningful feedback, and the agency cannot meet its requirements under the APA. After refreshing the record, the FCC must conduct a formal rulemaking in which it provides notice to the public of its conclusions and proposed actions, considers and addresses comments, and explains the reasoning behind its final conclusions.