TR Daily Divided FCC Reaffirms 2017 RIF Order on Remand
Tuesday, October 27, 2020

Divided FCC Reaffirms 2017 RIF Order on Remand

Over the dissents of Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks, the FCC today found, after examining three issues remanded to it by the U.S. Court of Appeals for the District of Columbia Circuit, that there is no reason to change its 2017 restoring Internet freedom (RIF) decision to reclassify broadband Internet access service (BIAS) as an information service.

In a 2019 decision (TR Daily, Oct. 1, 2019), the D.C. Circuit largely upheld the FCC’s 2017 RIF order, including its reclassification of BIAS as an information service subject to light regulation under Title I of the 1934 Communications Act, as amended, rather than a telecommunications carrier, subject to heavier, common carrier regulation under Title II. However, the court remanded three issues on which it said the FCC either failed to examine, sufficiently explain, or adequately address the effects of its order: public safety, Lifeline, and pole attachments. The Commission took comments on the remanded issues earlier this year (TR Daily, April 21).

In the order adopted today in Wireline Competition dockets 17-108, 17-287, and 11-42, the FCC found that the lighter regulation of Title I will encourage broadband deployment, thus ultimately helping public safety communications; will not significantly impair pole attachments as broadband service is typically commingled with other services that continue to have access to poles at regulated rates; and will not stop the FCC from providing Lifeline support for BIAS, as eligibility for support depends on the classification of the provider as an eligible telecommunications carrier, not on the regulatory classification of the supported service.

The order also concludes that the benefits of Title I classification and light-touch regulation outweigh any potential adverse effects, according to the Wireline Competition Bureau’s presentation of the item at today’s FCC meeting.

In a press release, the FCC emphasized that since the adoption of the RIF order, the U.S. "has set annual records for new fiber deployment, the installation of new wireless cell sites has increased dramatically, and average fixed broadband download speeds have more than doubled according to Ookla."

In her separate statement, Commissioner Rosenworcel said that in the midst of a pandemic when so much work, education, health care, social contacts, and other activities have moved online, "We need 100% of us connected to broadband. … We’re not there yet. Far from it. The rollback of net neutrality did not get us any closer to broadband for all, despite the lofty promises made by the FCC. You see it in the reports of the digitally disconnected all around the country. We have adults sitting in cars in parking lots just to catch Wi-Fi to go online for work. We have kids lingering outside of fast food restaurants with laptops just to get a wireless signal so they can go to online class. We have cities and towns fearful that they will not survive this crisis without new efforts to extend broadband to their residents and businesses. And much like the effects of the virus itself, those who are struggling are disproportionately from groups that for too long have suffered systemic discrimination."

She added that the FCC’s action in affirming the 2017 RIF order will leave BIAS subscribers with nowhere to turn if providers discriminate and manipulate traffic, because "our broadband markets are not competitive. Most households in this country have no choice of broadband provider. So if your broadband provider is blocking websites, you have no alternatives. The FCC will say head to the Federal Trade Commission. But the FTC is not the expert agency for communications. The FCC will say head to state consumer protection authorities. But remember this Administration is suing states that tried to fill in the net neutrality and broadband void created when the FCC stepped out."

Commissioner Rosenworcel said that the FCC’s order disregards the important role of public safety in the agency’s mission and "sidesteps the concerns of the court by insisting that removing net neutrality increases network investment, which will accrue to the benefit of public safety. The evidence for this is less than clear. But more importantly, it doesn’t adequately explain why this is the case when lives are on the line. Nor does it detail in any meaningful way how first responders will manage when emergency communications are throttled or blocked. This concern is not just theoretical. Among those opposing the FCC’s rollback of net neutrality are firefighters who found their service throttled when they were responding to a raging blaze. But here their fears are given short shrift. The agency simply concludes that the elimination of net neutrality is worth the risk, even when lives are at stake."

She also argued that the decision will curtail new BIAS entrants that don’t offer voice service because they won’t qualify for regulated telecom rates for attaching to utility poles.

And she said that the FCC "just dodges" the court’s concerns about Lifeline service. "It ignores the fact that in Section 254 universal service is defined as an evolving level of telecommunications service and it offers a hodgepodge of citations to claim that its decision did not destabilize the Lifeline program. But it did. Because there is no question the program is on less firm legal ground than it was before—and that’s a shame. The future of communications is broadband, and this program should reflect that. Modernizing it is how we reach 100% of us, but this decision puts that at risk," she said.

Commissioner Rosenworcel also argued that the FCC is being inconsistent with respect to section 230 of the Communications Decency Act, which provides protections for social media platforms and other Internet intermediaries for third-party content and for attempting to policy such content.

"It has been in the news lately as we all grapple with the frustrations of social media. Three years ago, the FCC insisted that Section 230’s references to a competitive, free market for internet compelled this agency to roll back net neutrality. It was bunk at the time. But now the agency’s approach to section 230 is even more confounding. Because following a push from the administration, the FCC has reversed course. It now insists that this provision of the law compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police," she said.

She concluded with an appeal for the FCC to revisit the issue in the future, presumably with a different makeup and a Democratic majority.

"I dissent because it doesn’t have to be this way. We can have an FCC that is responsive to consumers. We can have an FCC that accepts nothing less than connecting 100% of us to broadband so everyone, everywhere has a fair shot in the digital age. We can have an FCC that restores net neutrality, rather than doubles down on reasons to take it away. I still believe these things are possible. I still have faith that as a Nation, we can make them happen. We can revisit these matters anew. So let’s not stop here or now. Let’s persist. Let’s fight. Let’s make it happen. I believe we can and I believe we should because the future depends on it," Commissioner Rosenworcel said.

In his dissent, Commissioner Starks hit on many of the same points, including the importance of broadband connections during the COVID-19 pandemic, the continued digital divide that disproportionately affects low-income and minority households, and the RIF order’s undercutting of FCC regulatory oversight of BIAS providers.

With regard to public safety, Commissioner Starks said, "The Remand Order excuses our loss of authority to prevent ISPs from engaging in throttling, blocking and otherwise harming public safety communications because of the purported severe consequences that an ISP [Internet service provider] would likely suffer from any misconduct. For example, the Remand Order claims that ISPs could experience severe reputational harm, be subject to consumer protection enforcement by the FTC or state agencies for deceptive practices, or even be sued by the Justice Department for antitrust violations. But none of those situations address the D.C. Circuit’s concerns about the effectiveness of such an after-the-fact ‘remedy’ in the public safety context."

With regard to pole attachments, he said that the order directs any BIAS provider that does not want to offer telecom or video services, and thus qualify for telecom or cable attachment rates, to seek relief from state regulatory authorities and "notes that several states have preempted the FCC’s Section 224 pole attachment authority or have statutes regulating pole attachment rates charged to ISPs. Of course, if the ISPs can’t get state law changed, the RIF Order finds that ‘it would be counterproductive to upend our light-touch regulatory framework for broadband Internet access service because of speculative concerns that at most would impact a small minority of ISPs and consumers.’ Once again, I fail to see how such a response can satisfy the D.C. Circuit."

As for Lifeline, Commissioner Starks said, "The Remand Order ultimately concludes that, even if its legal reasoning falls short, ‘the benefits of reclassification would outweigh the removal of broadband Internet access service from the Lifeline program ….’ Given that the Remand Order acknowledges that those benefits remain in dispute, this statement is chilling. The majority would rather disconnect nearly 8 million Americans from a critically needed service during a pandemic than subject ISPs to any form of FCC oversight. The millions of Lifeline subscribers who depend on this essential program deserve better."

He concluded, "Finally, as we vote on this item, I’m struck by the majority’s inconsistency in affirming the RIF Order even as the Chairman has announced his plan to circulate a rulemaking on Section 230. After all, it was in the RIF Order that the majority pointed to Section 230 as evidence of Congress’s intent that broadband should receive a ‘free market approach’ as an information service. It’s absurdly ironic that some of Net Neutrality’s strongest opponents now argue that the Commission should interpret Section 230 to control the speech of private companies. Those pieces don’t fit together. You can’t pretend to have a light-touch regulatory framework when you’re proposing to regulate online content with a heavy hand. This ideological about-face shows that the imminent Section 230 rulemaking I think is about pleasing the President than making good policy."

Commissioner Mike O’Rielly spoke briefly about the item at the FCC’s meeting, warning that given the likelihood of legal challenges, the FCC should "be careful not to take actions that would undermine the order or make it vulnerable, rather, we need to apply its legal and economic underpinnings consistently across our proceedings."

In his prepared written statement, Commissioner O’Rielly said, "The law means what it says, and the Commission must stay true to the ideal, exemplified in the RIF Order, of striving to follow the statutory text as closely as possible. When it comes to information services, it’s one thing to interpret, pursuant to Congressional authorization, an ‘ambiguous’ provision in the statute to provide guidance to the courts in the face of legal uncertainty. … But, finding ways to regulate Title I or non-regulated services by stretching the statute to find ‘ambiguities’ and introducing a new regulatory framework couched as interpretive guidance or otherwise, seriously undermines the careful analysis the Commission took in the RIF Order and jeopardizes its legal underpinnings. I also reject the prospect of a different FCC breathing new life into section 706 on the basis that, so long as it’s in the statute, it’s fair game as grounds for regulation. Just because the Commission can do something or might arguably receive deference for it under flawed judicial precedent, doesn’t mean that it’s acting faithfully with respect to the statutory text. And, that’s certainly true when such efforts directly contradict the provisions of law crafted by those elected representatives for whom I worked."

He added, "Finally, our previous work was an exemplar of regulatory humility. Regulators are notoriously bad at predicting the future and their interventions can undermine innovation and the free market in ways that are hard to anticipate, especially in the face of a dynamic and constantly evolving communications industry. This inherent limitation, coupled with the fact that Congress should guide major questions of policy and determine the contours of an agency’s authority, undergirded the Commission’s decision to reject its predecessor’s radical policy changes and assertion of virtually unbounded power to make up rules for providers. I hope the Commission will make every effort to remain on this correct path."

Commissioner O’Rielly did not explicitly state any specific proceedings he had in mind with respect to his warning about not making the RIF remand order vulnerable to legal challenges, but President Trump’s withdrawal of Mr. O'Rielly's nomination for another term on the FCC has been seen as a reaction to comments he made that White House officials saw as critical of the president’s section 230 executive order, which led to a petition by the National Telecommunications and Information Administration that kicked of the FCC’s section 230 proceeding (TR Daily, Aug. 3).

Commissioner Brendan Carr told reporters during a conference call after the meeting that there is "no path forward that I see for litigants to prevail." He added, "At its core, we should be putting this issue in our rearview mirror."

In his written statement, Commissioner Carr credited the agency’s 2017 RIF order for the resiliency with which U.S. broadband networks have handled the shift of so many activities online during the COVID-19 pandemic.

"America’s communications networks were in far better shape to handle the surge in COVID-19 traffic than they were under the Commission’s Title II regime. More communities were connected to robust and resilient services; more Americans had a choice for their broadband needs. This should put the debate over utility-style regulation of the Internet in the rear-view mirror once and for all. And it should focus all of us on what really matters—continuing to close the digital divide and making sure every American has a fair shot at next-generation connectivity," Commissioner Carr said.

"In the end, though, the fight over ‘net neutrality’ at the FCC has never really been about net neutrality. That’s just the sheep’s clothing. It’s always been about rate regulation—a surefire way to kill innovation and scare off investment," he added.

In his separate statement, Chairman Ajit Pai noted the negative reaction to the 2017 proceeding that culminated in the RIF order, including death threats, "racist invective," and a bomb threat during the meeting at which the order was adopted. In addition, opponents predicted blocking, throttling, slow downloads, and increased prices as a result of the order.

"Our decision has been increasingly vindicated over time. The Internet economy in the United States is stronger than ever. For example, since we adopted the Restoring Internet Freedom Order, average fixed broadband download speeds in the United States have more than doubled, according to Ookla. In 2018, we set an annual record for fiber deployment in the United States. And then we broke that record in 2019," he said.

"And most of all, the Internet has remained free and open. The American people can still access their favorite websites. They don’t pay extra to avoid the slow lane. And they don’t have to pay a fee each time they tweet," he added.

Chairman Pai also said that there is no evidence that the 2017 decision has harmed public safety, that its effect on the FCC’s regulation of pole attachment rates has been "negligible," and that it has not undermined the FCC’s authority to provide Lifeline support for broadband.

Reaction was varied and generally predictable, with supporters of net neutrality and Title II regulation bemoaning the outcome. Incumbent BIAS providers that would prefer a lighter touch praised the decision, while also calling for congressional action to clarify the situation.

Sen. Ed Markey (D., Mass.) said, "The Circuit Court correctly stated that the FCC is ‘unhinged from the realities of modern broadband service’ with their harmful actions on net neutrality. The FCC’s vote today to double down on repealing net neutrality and ignore its impact on public safety, universal access, and broadband competition continues to fly in the face of the reality that Americans confront today—the urgent need for access to reliable and affordable broadband free of corporate control."

Sen. Markey added, "I will not rest until net neutrality is back on the books. The stakes are just too high for the future of the American economy and our democracy."

Incompas Chief Executive Officer Chip Pickering said, "Today, Americans have no guarantee that critical communications over broadband will be delivered since net neutrality was repealed, and they are already paying the price. Without oversight, large ISPs have imposed data caps that have raised prices on consumers during the pandemic. Moreover, large ISPs have responded to the net neutrality changes they demanded by firing workers, cutting broadband services and accumulated record levels of debt."

Computer & Communications Industry Association President Matt Schruers said, "CCIA continues to support strong, clear, bright-line rules preventing blocking, throttling, and discrimination like paid prioritization by internet access providers. These rules benefit all internet users and businesses as they encourage more competition and innovation by putting the next start-up on equal ground with bigger businesses."

Also issuing statement criticizing the order were Public Knowledge, Free Press, New America’s Open Technology Institute, and Gigi Sohn, former counselor to former FCC Chairman Tom Wheeler and now a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy and Benton Foundation senior fellow.

USTelecom President and CEO Jonathan Spalter said, "We are pleased the FCC tackled the three issues remanded to it by the court and bolstered the 2017 order and the bipartisan policy framework that has guided the internet through 20 years of openness and extraordinary growth. At the end of the day, while the internet continues to thrive under the current federal approach, it is long past time for Congress to step in and end the regulatory rinse and repeat cycle with a strong national framework that applies to all companies, maintains our dynamic and open internet, and sustains our global digital leadership for the next generation and beyond."

The Internet Innovation Alliance said, "We warmly welcome the FCC’s decision today to adopt an Order on Remand that strongly reaffirms its fundamental decision in the Restoring Internet Freedom Order. … Title II proponents’ predictions of anti-competitive behaviors by service providers have failed to materialize, and the Order has succeeded in driving more investment and innovation in broadband."

Also issuing statements in support of the order were FreedomWorks and the Free State Foundation. —Lynn Stanton, [email protected]

MainStory: FederalNews FCC NetNeutrality UniversalServiceLifeline PublicSafety BroadbandDeployment Covid19

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