Draft Order on Remand: Review of the Restoring Internet Freedom Remand Order

On October 6th 2020, the Federal Communications Commission (FCC) published a draft Order on Remand (“Draft Order”) responding to the DC Circuit’s remand in Mozilla Corp. v. FCC, which ordered the FCC to review the effect of the Restoring Internet Freedom Order (“Freedom Order”) on (1) public safety, (2) the regulation of pole attachments, and (3) the Lifeline Program for low-income support.  Made public on January 4th 2018, the Restoring Internet Freedom Order ended the common carriage policy of “Net Neutrality” and moved broadband internet services from Title II telecommunications services to the more relaxed standards of a Title I information service. On October of 2019, after legal challenges in the suit, the DC Circuit Court upheld most of the order and remanded it to the FCC for review on three issues cited above. The Commission finds the Freedom Order favorable in all three areas of review.

With regards to public safety, the Commission writes that “even if there were some adverse impacts on public safety applications in particular cases” the overall benefits to the public from Title I information service regulation will still outweigh any such impacts that may arise. The Draft Order cites multiple FCC-led improvements in public safety regulation since the publication of the Freedom Order as evidence that public safety has not been negatively affected.

These improvements include, but are not limited to: the implementation of Kari’s Law, which mandates easier 911 emergency access for business telephone networks; of RAY BAUM’S ACT, which requires cellphones to transmit more accurate location data to emergency services; and the designation of 988 across all carriers as the three-digit number to reach the National Suicide Prevention Lifeline.

As for the second point on remand, the FCC feels that benefits to the broadband ecosystem under its “light-touch” Title I regulation far outweigh the loss of pole attachment powers for broadband businesses under Section 224 of the Communications Act. While broadband was regulated under Title II, broadband-only providers with no telecommunications service component could make use of Section 224 to compel competitors to offer use of existing pole infrastructure. Citing NCTA v. Gulf Power Co., the Commission notes that the vast majority of broadband infrastructure has telecommunications services comingled with information services, and that these mingled cables will remain covered by the protections of Section 224.

With these facts in mind, and noting that pure-broadband providers can contract with telecommunications service providers in order to gain access to Section 224, the Commission writes that these changes in pole-attachment rights “[do] not significantly limit new entrants to the marketplace” nor the ability of existing providers to expand their operations.  

The Commission also finds that the Freedom Order does not interfere with the FCC’s ability to provide Lifeline support for low-income broadband access under Section 254(e) of the Communications Act. Congress’s mandate to fund “advanced services” as well as traditional telephony to low-income users was reaffirmed in the 2011 USF/ICC Transformation Order which called for deployment of the Commission’s high cost mechanisms, including Lifeline, to support the “ubiquitous deployment of, and consumer access to, both traditional voice calling capabilities and modern broadband services over fixed and mobile networks.” Therefore, the FCC does not see any reason why the status of broadband internet as an information or a telecommunication service should limit the ability of the Commission to subsidize access to these services with existing low-income support tools.

On the whole, the Draft Order solidifies post-Net Neutrality broadband services as the new status quo for providers and customers. The Freedom Order and regulation of broadband as a Title I information service have survived the initial wave of legal challenges and the FCC remains committed to Chairman Pai’s laissez-faire agenda, for now.

However, with the presidential election less than one month away, the future of the Restoring Internet Freedom Order remains unsettled. A change in administration could bring about the swift return of Net Neutrality and a radical change in the Commission’s priorities and stances. Having survived judicial review, it remains to be seen whether the “light-touch” approach to broadband regulation can survive electoral review, as well.

If you would like to know more about the current state of FCC broadband regulation, and how policy changes under a potential Biden administration could affect your business, please contact Jonathan S. Marashlian at jsm@commlawgroup.com or 703-714-1313.

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