TR Daily Bureau Seeks Input on Issues Remanded by Court in RIF Case
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Wednesday, February 19, 2020

Bureau Seeks Input on Issues Remanded by Court in RIF Case

The FCC’s Wireline Competition Bureau today requested comment to refresh the record in its restoring Internet freedom (RIF) and Lifeline proceedings with respect to issues remanded to the agency by the U.S. Court of Appeals for the District of Columbia Circuit in the “Mozilla Corp. v. FCC” decision that upheld the agency’s 2017 RIF order, which reclassified broadband Internet access service as an information service and eliminated most of the agency’s net neutrality rules adopted in its 2015 open Internet order.

The court recently denied all requests for rehearing the case (TR Daily, Feb. 6) and issued its mandate yesterday, the bureau noted in a public notice released today in WC dockets 17-108, 17-287, and 11-42.

In its decision last fall upholding most provisions of the RIF order, the court remanded the order to the FCC to address issues in three areas in which it found the order inadequate: “(1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program,” it said (TR Daily, Oct. 1, 2019).

In today’s public notice, the bureau sought input on each of those issues.

“First, we seek 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,” it asked. It also asked about the impacts of prioritization on public safety agencies that choose not to pay for prioritization. It asked to what extent public safety agencies rely on mass-market retail, “best-efforts” service.

“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 Commission in the Title II Order? 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 Commission 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 [Communications Act] 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 Commission’s underlying decision to classify broadband as a Title I information service?” the bureau asked.

“Second, we seek 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 Commission authority in non-reverse preemption states by virtue of the ISPs’ provision of cable or telecommunications services covered by [Communications Act] 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 Commission’s underlying decision to classify broadband as a Title I information service?” the bureau asked.

“Third, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the Lifeline program. In particular, we seek to refresh the record on the Commission’s authority to direct Lifeline support to eligible telecommunications carriers (ETCs) providing broadband service to qualifying low-income consumers. In the 2017 Lifeline NPRM, the Commission 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 Commission proceed to adopt it?” the bureau asked.

“For example, the Court in ‘Mozilla’ invited the Commission 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.’ We seek to refresh the record in light of the Court’s invitation. We also ask parties to refresh the record on whether there are other sources of authority that allow the Commission 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 Commission’s underlying decision to classify broadband as a Title I information service?” it added.

Comments in response to the public notice are due March 30, and reply comments are due April 29.

In a statement on the public notice, FCC Commissioner Jessica Rosenworcel, who dissented from the 2017 RIF decision, said, “The FCC got it wrong when it repealed net neutrality. The decision put the agency on the wrong side of history, the American public, and the law. And the courts agreed. That’s why they sent back to this agency key pieces regarding how the rollback of net neutrality protections impacted public safety, low income Americans, and broadband infrastructure. Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives. The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise.”

Free Press Director-research S. Derek Turner said, “The people overwhelmingly demanded a free and open internet, and instead got stuck with this mess. The FCC not only repealed Net Neutrality, but as the court has indicated, it put broadband access, affordability and even public safety at risk. That the court sent these critical issues back to the FCC for further review demonstrates that Chairman [Ajit] Pai’s interpretation of his agency’s legal authority rests on very unstable ground.”

Mr. Turner added, “The fight for open, nondiscriminatory internet access won’t end with Pai’s tenure at the FCC. And Free Press will still be here demanding the restoration of these safeguards on behalf of all internet users long after he has left the FCC.”

Public Knowledge Senior Policy Counsel Jenna Leventoff said, “Instead of opening new rulemaking proceedings to properly address the Court’s serious concerns, the FCC has combined them into a single, four-page, bureau-level public notice, and provided a mere 40 days for public comment on all of them. The nature of the questions the FCC has put forward, also, appear to assume that the Commission got it right the first time, an opinion the Court clearly did not share.”

Ms. Leventoff added, “Public Knowledge is deeply disappointed in the FCC for failing to take the court’s request seriously, and for its apparent lack of desire to think about how its Order will impact the safety of the American public, the beneficiaries of the Lifeline program, and the entities using pole attachments to provide broadband. We encourage the public to speak out about the importance of a free and open internet.” —Lynn Stanton, [email protected]

MainStory: FederalNews FCC NetNeutrality PublicSafety UniversalServiceLifeline

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