FCC Seeks Comment on Net Neutrality Issues Remanded by Appeals Court: Public Safety, Pole Attachments and Lifeline

WASHINGTON, February 25, 2020 – In the wake of the D.C. Circuit court’s decision to uphold the substance but remand three elements of the Federal Communications Commission’s 2017 net neutrality decision, the FCC issued a notice seeking public comment.

The FCC’s 2017 initiative changed the classification of broadband internet service to a Title I “information service” rather than a Title II telecommunication service subject to common carrier regulation. The move considerably loosened regulations on broadband providers that had been imposed by the FCC under the Obama administration in February 2015.

But in upholding the bulk of the regulatory rollback, the D.C. Circuit required the agency to revisit its rationale for rules governing public safety, pole attachments, and the FCC’s Lifeline program for low-income individuals.

See Broadband Breakfast’s analysis of the D.C. Circuit Court opinion, at “D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC“

The agency’s Wireline Competition Bureau sent a public notice addressing the three issues. As regards public safety, the bureau asked, “Do broadband providers have policies in place that facilitate or prioritize public safety communications?”

While the Commission said “permitting paid prioritization arrangements would increase network innovation,” the bureau said it wanted to know the benefits and potential harms this has on public safety communication.

Second, the bureau raised the issue of pole attachments in states subject to federal regulation, i.e. those that do not reverse-preempt the FCC. Under pole attachment laws, states may create their own regulations, or defer to the FCC for national rules. About half of states make their own rules.

Third, the bureau asked how deregulated broadband will effect the FCC’s Lifeline program subsidizing broadband for low-income Americans.

Federal Communication Commissioner Jessica Rosenworcel said that the American people “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,” said Rosenworcel,

Free Press Research Director S. Derek Turner called the Restoring Internet Freedom Order a “mess.”

“As the court has indicated, it put broadband access, affordability and even public safety at risk,” said Turner.

“That the court sent these critical issues back to the FCC for further review demonstrates that Chairman Pai’s interpretation of his agency’s legal authority rests on very unstable ground,” said Turner.

Turner characterized the Obama’s 2015 net neutrality initiative making broadband providers common carriers as a form of “light regulation.” The approach taken by then-FCC Chairman Tom Wheeler avoided “the pending legal chaos that Chairman Pai has created.”

Kevin Taglang with the Benton Institute for Broadband and Society said that the deadline for open comments was March 30, 2020. Reply comments are due on April 29.