February 19, 2020 – The FCC’s Wireline Competition Bureau is seeking comment on three net neutrality issues on remand from the U.S. Court of Appeals for the District of Columbia Circuit.[1] Comments are due on or before March 30, 2020, and reply comments are due April 29, 2020.

In Mozilla Corp. v. FCC,[2] the D.C. Circuit upheld the vast majority of the FCC’s Restoring Internet Freedom Order, but remanded three discrete issues related to Public Safety, Pole Attachments, and the Lifeline Program for further consideration by the FCC.

Public Safety

First, the FCC seeks to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect public safety. In the Restoring Internet Freedom Order, the Commission predicted, for example, that permitting paid prioritization arrangements would “increase network innovation,” “lead[] to higher investment in broadband capacity as well as greater innovation on the edge provider side of the market,” and “likely . . . be used to deliver enhanced service for applications that need QoS [i.e., quality of service] guarantees.”

• 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? 

Relatedly, the Commission concluded that, because prioritizing packets for latency-sensitive applications would not typically degrade other applications on the same network, any non-profits, libraries, or independent content providers who declined to pay for prioritization would not be harmed.

• Would this same logic also apply to public safety communications?

• Do broadband providers have policies in place that facilitate or prioritize public safety communications?

• To what extent do public safety officials (at both the state and local level) even rely on mass-market retail broadband services covered by the Restoring Internet Freedom Order (i.e., services that only promise “best efforts” in the delivery of content), rather than dedicated networks with quality-of-service guarantees (i.e., enterprise or business data services) for public safety applications?

• 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 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?

Pole Attachments – Section 224

Second, the FCC seeks 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 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 the FCC 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 Universal Service Lifeline Program

Third, the FCC seeks to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the Lifeline program. In particular, the FCC seeks 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?  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.” The FCC seeks to refresh the record in light of the Court’s invitation.  The FCC also asks 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?

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[1] Wireline Competition Bureau Seeks To Refresh Record In Restoring Internet Freedom And Lifeline Proceedings In Light Of The D.C. Circuit’s Mozilla Decision, WC Docket Nos. 17-108, 17-287, 11-42, Public Notice, DA 20-168 (Feb. 19, 2020), https://docs.fcc.gov/public/attachments/DA-20-168A1.pdf.

[2] Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019).