TR Daily Draft Remand Order Affirms RIF Views on Lifeline, Public Safety, Pole Attachments
Tuesday, October 6, 2020

Draft Remand Order Affirms RIF Views on Lifeline, Public Safety, Pole Attachments

The draft order on remand of the FCC's 2017 restoring Internet freedom (RIF) would find that the RIF order's reclassification of broadband Internet access service (BIAS), elimination of Internet conduct rules adopted in 2015, and adoption of a generally light-touch regulatory would benefit public safety, outweigh any possible harm to broadband-only Internet service providers from the loss of pole-attachment rights, and leave the FCC with legal authority to provide Lifeline support to eligible telecommunications carriers (ETCs) that provide broadband service over networks that are also used for voice service.

The draft RIF order on remand is one of eight items slated for a vote at the Oct. 27 meeting. Along with a tentative agenda, the FCC today released draft items on allocating Phase I 5G Fund support, modifying TV white spaces rules, enabling streamlined state and local review of construction within 30 feet of an existing wireless cell site, loosening unbundled network element requirements, expanding the FCC's audio description requirements for TV programming, and allowing AM broadcasters to move to all-digital signals (see separate stories). The tentative agenda also includes an Enforcement Bureau item, but the agency typically does not release any information on enforcement items until it has adopted them.

In a 2019 decision (TR Daily, Oct. 1, 2019), the U.S. Court of Appeals for the District of Columbia Circuit largely upheld the FCC's 2017 RIF order, including its reclassification of broadband Internet access service (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).

The draft RIF order says, "After considering the three issues identified by the court in light of the record developed thereafter, we see no grounds to depart from our determinations in the Restoring Internet Freedom Order."

With regard to public safety, the draft order says, "We find that neither our decision to return broadband Internet access service to its longstanding classification as an information service, nor our subsequent decision to eliminate the Internet conduct rules, is likely to adversely impact public safety. To the contrary, our analysis reinforces our determinations made in the Restoring Internet Freedom Order, and we find that on balance, the light-touch approach we adopted and the regulatory certainty provided by the Restoring Internet Freedom Order benefit public safety and further our charge of promoting 'safety of life and property' and the national defense though the use of wire and radio communications. We also find that even if there were some adverse impacts on public safety applications in particular cases—which we do not anticipate—the overwhelming benefits of Title I classification would still outweigh any potential harms."

It adds, "The record reflects that the regulatory certainty and light-touch approach the Restoring Internet Freedom Order affords also likely gives ISPs stronger incentives to upgrade networks to 5G, paving the way for new and innovative applications and services that can benefit public safety."

It finds that "the record reflects insufficient evidence" of the specific harms to public safety communications asserted by some filers, such as blocking; throttling; loss or delay due to paid prioritization; barriers experienced by individuals with disabilities; and damage to the safety and reliability of critical infrastructure.

It says that public safety communications will be protected by the FCC's transparency rules and by antitrust and consumer protection laws.

Regarding pole attachments, the draft order says that "the benefits of returning to the light-touch information service classification adopted in the Restoring Internet Freedom Order far outweigh any limited potential negative effects resulting from the loss of section 224 rights for broadband-only ISPs."

It adds, "First, we find that any drawbacks of reclassification are limited because in the areas where federal pole attachment regulation applies, almost all ISPs' pole attachments remain subject to section 224, as they commingle cable or telecommunications services with their broadband services. Second, we conclude that the benefits of reclassification for broadband-only providers outweigh any limited pole attachment-related drawbacks they face—and the overall benefits of reclassification outweigh the drawbacks of broadband-only ISPs' attachments no longer being subject to section 224."

The draft order points out that "despite its concerns that pole owners will use the reclassification of broadband Internet access service as an information service to delay and even block new deployments by broadband-only providers, Google acknowledges that before broadband Internet access service was classified as a telecommunications service, it was able to enter into such agreements with utilities."

As for Lifeline broadband service, the draft order reiterates the RIF order's finding that the FCC has "legal authority under section 254(e) of the [Communications] Act to provide Lifeline support to ETCs that provide broadband service over broadband-capable networks that support voice service. That authority is undergirded by the clear intent of Congress that universal service efforts should increase access to advanced services, and the record in this proceeding offers broad support for our conclusion."

"We conclude, as the Commission found in the context of the high-cost mechanism, that we have authority under section 254 to continue funding broadband Internet access service offerings in the Lifeline program and that this position is strongly supported by the text of the Communications Act and the record," it says.

"We further reject arguments that the Commission cannot apply the legal authority articulated in the USF/ICC Transformation Order because of the differences between the high-cost program and the Lifeline program. very ETC, whether they participate in the high-cost program, Lifeline program, or both programs, necessarily incurs network costs associated with the provision of the supported voice service and advanced services, such as broadband Internet access service. In the case of facilities-based Lifeline providers, these costs arise in deploying and maintaining their own broadband-capable networks used to offer the voice telephony supported service. Resellers participating in the Lifeline program likewise incur costs associated with the network used to offer the supported voice service by directly compensating the underlying facilities-based providers for the wholesale voice services. Both programs ultimately offset those network costs. The main difference is that the high-cost program provides supplemental support for areas that are especially expensive to serve, while the Lifeline program compensates providers for some of their costs so they can offer discounted service to low-income Americans, thus incentivizing ETCs to provision, maintain, and upgrade facilities and services where low-income consumers live," it says.

It disagrees with the California Public Utility Commission that Title I classification of BIAS providers will prevent state universal service programs from supporting broadband only service. "Congress specifically delineated the states' authority to 'advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunication service, and safeguard the rights of consumers.' This authority is broad enough for the states to accomplish their universal service goals without forcing a burdensome federal regulatory regime (i.e., Title II) on broadband Internet access service offerings."

"Finally, while we are confident that our analysis of the statutory authority allows for the continued support of broadband Internet access service through the Lifeline program, we would still reach the same conclusion on the classification of broadband Internet access service that we did in the Restoring Internet Freedom Order even if a court were to conclude that the Lifeline program could not support broadband Internet access service. As the Commission previously stated, a return to Title I classification better facilitates critical broadband investment through the removal of regulatory uncertainty and lower compliance burdens. Further, Title I classification allows for greater freedom to operate and serve customers in rural or underserved areas of the country. Additionally, by reclassifying broadband Internet access service as a Title I service the Commission sought to bring greater regulatory certainty to the market, removing a fog that stifled innovation. As such, we believe that the benefits of reclassification would outweigh the removal of broadband Internet access service from the Lifeline program, were the sound statutory authority relied on today be found insufficient."

Joshua Stager, senior counsel at New America's Open Technology Institute, said, "This is an October surprise that nobody wanted except for AT&T and Comcast lobbyists. A federal court ruled that the FCC was 'unhinged from reality' when it repealed net neutrality in 2017, and yesterday's announcement [TR Daily, Oct. 6] shows that Chairman Pai's perspective remains unhinged. His jovial announcement suggests he learned nothing from the court and has no intention of fixing his mistakes. The American people need internet freedom, not jokes about Reese's Peanut Butter Cups."

Mr. Stager added, "There's simply too much at stake during a pandemic that millions of people are suffering through without internet access. Instead of tackling this crisis, Pai appears to be dithering with yet another gift to the telecom industry. Moreover, the opaque process behind today's announcement suggests Pai learned nothing from the court or the mess he created. If the FCC won't clean up this mess, Congress should by immediately passing the Save the Net Act."

Public Knowledge Legal Director John Bergmayer said, "The Commission's draft does not show how its reckless move to abandon oversight of broadband can adequately promote public safety, universal service, and access to infrastructure by broadband providers (pole attachments). Rather, it has concluded that deregulation is more important than achieving those goals. This is consistent with the practice of the Commission under Chairman Pai, which continues to ignore the growing harms of failing to exert its authority over broadband, despite the chorus of Americans demanding affordable, equitable access to broadband that is reliable, secure and open."

Mr. Bergmayer added, "The draft order dismisses real public safety harms as irrelevant, and genuine fears as 'speculative,' as though its own predictions of how public safety would be affected by the Commission's abandonment, for the first time, of oversight of broadband providers was anything but that. It concedes that broadband-only internet service providers will lose access to pole attachment rights but simply doesn't care—failing to foresee the obvious future where most ISPs are broadband-only. Its approach to universal service similarly depends on ISPs perpetually offering regulated services as a means of qualifying for support.

"The Commission's answers to the questions that the D.C. Circuit remanded to it are inadequate, and represent an abandonment of its statutory goals. These are fatal flaws for the Pai FCC's radical and untested deregulatory agenda. It is increasingly clear that oversight of broadband to ensure public safety, universal service, and an open internet should be a top priority for Congress. Voters have shown that they demand it," Mr. Bergmayer concluded. —Lynn Stanton, [email protected]

MainStory: FederalNews FCC PublicSafety UniversalServiceLifeline BroadbandDeployment

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