Public Knowledge Files Comments on FCC’s Net Neutrality Public Notice

The court in Mozilla required the Federal Communications Commission to address how its Restoring Internet Freedom Order, which repealed the agency’s net neutrality rules and removed FCC jurisdiction over broadband, impacted public safety, pole attachments, and the Lifeline program. Instead of opening a new rulemaking proceeding, the FCC issued a Public Notice that fails to explain how the agency ultimately intends to proceed on this matter. Indeed, the agency’s questions in the Public Notice don’t even begin to address the range of issues presented to the Commission on remand by the DC Circuit Court. The FCC’s approach to the remands is severely lacking from an administrative law perspective. Nevertheless, it is clear that the best way for the FCC to fulfill its statutory mandates to promote the public interest is to classify broadband as a telecommunications service, which gives the agency clear authority to carry out its duties. In any event, the Administrative Procedures Act requires the FCC to actually confront the trade-offs of its policy choices instead of simply ignoring them. We explain how the FCC should reassert its authority over broadband providers so that it can properly fulfill its responsibilities. In particular, as millions of Americans are staying home due to the pandemic, it has become clear that reliable, affordable broadband access is important to allow people to work and attend classes from home — and is even a matter of public safety. Title II of the Communications Act gives the FCC a full range of tools to address our nation’s broadband needs.