The FCC is asking for public comment on issues remanded last year by the U.S. Court of Appeals for the District of Columbia Circuit in Mozilla Corp. v. FCC, which vacated the FCC's 2017 Restoring Internet Freedom Order (RIF Order) to the extent the FCC expressly preempted state or local requirements inconsistent with the RIF Order's deregulatory approach, and also remanded three issues for further FCC consideration. In the Public Notice released February 19, 2020, the FCC asks how the changes adopted in the RIF Order may affect (1) public safety, (2) pole attachment regulation in states subject to federal regulation, and (3) the FCC's Lifeline program. Comments are due March 30, 2020 and reply comments are due April 29, 2020.
Paid Prioritization and Public Safety. The RIF Order predicted that allowing paid prioritization arrangements would increase network innovation, result in increased investment in broadband capacity and greater innovation by edge providers, and deliver enhanced service for applications that require quality of service guarantees. The Public Notice asks if prioritization arrangements are likely to benefit public safety applications (for example, by enabling faster, more reliable transmission of public safety related communications during emergencies). The FCC also asks whether the RIF Order's conclusion that non-profits, libraries, and independent content providers who decline to pay for prioritization would not be harmed because prioritizing latency-sensitive application traffic typically would not degrade other applications on the same network, also applies to public safety communications.
Pole Attachments. The FCC asks to what extent ISP pole attachments are subject to FCC authority in non-reverse preemption states by virtue of the ISPs' provision of cable or telecommunications services covered by Section 224 of the Communications Act, and what impact the inapplicability of Section 224 to broadband-only providers may have on their access to poles. The FCC also asks generally how pole attachment practices have been affected by the RIF Order, including whether pole owners have increased attachment rates or inhibited broadband providers from attaching equipment.
Lifeline Program. Finally, the FCC seeks to refresh the record on its authority to direct Lifeline support to eligible telecommunications carriers (ETCs) providing broadband service to qualifying low-income consumers. In 2017, the FCC 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 now asks whether it should adopt that proposal in light of Mozilla. The FCC also asks whether other sources of authority allow it to provide Lifeline support for broadband services.