The Commission’s Wireline Competition Bureau, in a recent Public Notice, is seeking comment in three areas of its Restoring Internet Freedom Order. These three subjects are the only remanded items from the U.S. Court of Appeals for the District of Columbia, which upheld “the vast majority” of the FCC’s decision.
The subjects on which the Commission seeks a refreshing of the record are Public Safety, Pole Attachments, and the Lifeline Program.
- Public Safety: Questions range from, “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 Order…for public safety applications?” to “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: Again, a wide variety of questions ask, “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?” to “Are there any other impacts on the regulation of pole attachments from the changes adopted in the Order?”
- Lifeline Program: The big question pertains to the FCC’s authority to direct Lifeline support to 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 to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service’ and that ‘this 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.” And then, “How, if at all, does the (Court’s) decision bear on that proposal, and should the Commission proceed to adopt it?”
Many of these unresolved issues, particularly the Commission’s role in granting support to ETCs’ providing broadband to low-income consumers, are important. But the D.C. Court’s prior approval of most of the FCC’S light touch internet regulatory approach is by far the key decision here.