Restoring Internet Freedom; Bridging the Digital Divide for Low-Income Consumers; Lifeline and Link Up Reform and Modernization

CourtFederal Communications Commission
Citation86 FR 994
Publication Date07 January 2021
Record Number2020-25880
994
Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 28355, May 22,
2001), because it is not likely to have a
significant adverse effect on the supply,
distribution or use of energy and the
Administrator of the Office of
Information and Regulatory Affairs has
not otherwise determined that the
action is a significant energy action.
J. National Technology Transfer and
Advancement Act (NTTAA)
Since this action does not involve any
technical standards, NTTAA section
12(d), 15 U.S.C. 272 note, does not
apply to this action.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA believes that this action does not
have disproportionately high and
adverse human health or environmental
effects on minority populations, low-
income populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is
contained in the Economic Analysis,
which is available in the docket (Ref. 7).
L. Congressional Review Act (CRA)
This action is subject to the CRA, 5
U.S.C. 801 et seq., and EPA will submit
a rule report to each House of the
Congress and to the Comptroller General
of the United States. This action is a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 745
Environmental protection, Abatement,
Child-occupied facility, Clearance
levels, Hazardous substances, Lead,
Lead poisoning, Lead-based paint,
Target housing.
Andrew Wheeler,
Administrator.
Therefore, for the reasons set forth in
the preamble, 40 CFR chapter I,
subchapter R, is amended as follows:
PART 745—[AMENDED]
1. The authority citation for part 745
continues to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2681–
2692 and 42 U.S.C. 4852d.
2. Amend § 745.223 by revising the
definition for ‘‘Clearance levels’’ to read
as follows:
§ 745.223 Definitions.
* * * * *
Clearance levels are values that
indicate the amount of lead in dust on
a surface following completion of an
abatement activity. To achieve clearance
when dust sampling is required, values
below these levels must be achieved.
* * * * *
3. Amend § 745.227 by revising
paragraph (e)(8)(viii) to read as follows:
§ 745.227 Work practice standards for
conducting lead-based paint activities:
Target housing and child-occupied
facilities.
* * * * *
(e) * * *
(8) * * *
(viii) The clearance levels for lead in
dust are 10 mg/ft
2
for floors, 100 mg/ft
2
for interior window sills, and 400 mg/ft
2
for window troughs.
* * * * *
[FR Doc. 2020–28565 Filed 1–6–21; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket Nos. 11–42, 17–108, 17–287;
FCC 20–151; FRS 17241]
Restoring Internet Freedom; Bridging
the Digital Divide for Low-Income
Consumers; Lifeline and Link Up
Reform and Modernization
AGENCY
: Federal Communications
Commission.
ACTION
: Final rule.
SUMMARY
: In this document, the Federal
Communications Commission
(Commission) responds to a remand
from the U.S. Court of Appeals for the
D.C. Circuit directing the Commission to
assess the effects of the Commission’s
Restoring Internet Freedom Order on
public safety, pole attachments, and the
statutory basis for broadband internet
access service’s inclusion in the
universal service Lifeline program. This
document also amends the
Commission’s rules to remove
broadband internet service from the list
of services supported by the universal
service Lifeline program, while
preserving the Commission’s authority
to fund broadband internet access
service through the Lifeline program.
DATES
: This Order on Remand shall
become effective February 8, 2021.
ADDRESSES
: Federal Communications
Commission, 45 L Street NE,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT
:
Annick Banoun, Competition Policy
Division, Wireline Competition Bureau,
at (202) 418–1521, annick.banoun@
fcc.gov.
SUPPLEMENTARY INFORMATION
: This is a
summary of the Commission’s Order on
Remand in WC Docket Nos. 11–42, 17–
108, and 17–287, adopted October 27,
2020, and released on October 29, 2020.
The document is available for download
at https://www.fcc.gov/document/fcc-
responds-narrow-remand-restoring-
internet-freedom-order-0. To request
materials in accessible formats for
people with disabilities (Braille, large
print, electronic files, audio format),
send an email to FCC504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (TTY).
Synopsis
1. In the Restoring Internet Freedom
Order (83 FR 7852, Feb. 22, 2018), we
reversed the Commission’s misguided
and short-lived utility-style regulation
of the internet and returned to the light-
touch regulatory framework for
broadband internet access service that
facilitated rapid and unprecedented
growth for almost two decades. In this
Order on Remand, we maintain this
well-established approach after further
considering three discrete issues raised
by the U.S. Court of Appeals for the
District of Columbia Circuit (D.C.
Circuit).
2. In Mozilla Corp. v. FCC, the D.C.
Circuit upheld the vast majority of our
decision in the Restoring Internet
Freedom Order, remanding three
discrete issues for further
consideration—namely, the effect of that
Order on: (1) Public safety; (2) the
regulation of pole attachments; and (3)
universal service support for low-
income consumers through the Lifeline
program. Because the court concluded
that ‘‘the Commission may well be able
to address on remand’’ these three
issues, it declined to vacate the
Restoring Internet Freedom Order,
pending our further analysis. After
considering the three issues identified
by the court in light of the record
developed thereafter, we see no grounds
to depart from our determinations in the
Restoring Internet Freedom Order.
I. Background
3. Building on decades of precedent,
the Commission adopted the Restoring
Internet Freedom Order to return to the
successful light-touch bipartisan
framework that promoted a free and
open internet and, for almost twenty
years, saw it flourish. The Restoring
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Internet Freedom Order took effect on
June 11, 2018. The Restoring Internet
Freedom Order reversed the Title II
Order (80 FR 19738, April 13, 2015),
adopted in March 2015, which
reclassified broadband internet access
service from an information service to a
telecommunications service and
reclassified mobile broadband internet
access services as a commercial mobile
service and adopted three bright-line
rules—blocking, throttling, and paid
prioritization—as well as a general
internet conduct standard and
‘‘enhancements’’ to the transparency
rule. The Restoring Internet Freedom
Order, adopted in December 2017,
ended the agency’s brief foray into
utility-style regulation of the internet
and restored the light-touch framework
under which a free and open internet
underwent rapid and unprecedented
growth for almost two decades. The
Restoring Internet Freedom Order ended
Title II regulation of the internet and
returned broadband internet access
service to its long-standing classification
as an information service under Title I,
consistent with Supreme Court’s
holding in Brand X. Having determined
that broadband internet access service—
regardless of whether offered using
fixed or mobile technologies—is an
information service under the
Communications Act of 1934, as
amended (the Act), we also concluded
that as an information service, mobile
broadband internet access service
should not be classified as a commercial
mobile service or its functional
equivalent.
4. Mozilla Corp. v. FCC. In Mozilla
Corp. v. FCC, the D.C. Circuit largely
affirmed the Commission’s classification
decision in the Restoring Internet
Freedom Order. On February 6, 2020,
the D.C. Circuit denied all pending
petitions for rehearing, and the Court
issued its mandate on February 18,
2020. Although largely affirming the
Commission’s decision, the Mozilla
court ‘‘remand[ed] for further
proceedings on three discrete points.’’
The first is the effect of the ‘‘changed
regulatory posture’’ in the Restoring
Internet Freedom Order on public
safety. The D.C. Circuit observed that
‘‘Congress created the Commission for
the purpose of, among other things,
‘promoting safety of life and property
through the use of wire and radio
communications’ ’’ in section 1 of the
Act, and concluded that public safety is
‘‘an important aspect of the problem’’
that the agency must consider and
address. The Mozilla court also noted
that ‘‘[a] number of commenters voiced
concerns about the threat to public
safety that would arise under the
proposed (and ultimately adopted)’’
Restoring Internet Freedom Order,
including ‘‘how allowing broadband
providers to prioritize internet traffic as
they see fit, or to demand payment for
top-rate speed, could imperil the ability
of first responders, providers of critical
infrastructure, and members of the
public to communicate during a crisis.’’
The court declined to consider
petitioners’ arguments based on ‘‘an
incident involving the (apparently
accidental) decision by Verizon to
throttle the broadband internet of Santa
Clara firefighters while they were
battling a devastating California
wildfire,’’ which occurred after the
Restoring Internet Freedom Order.
Likewise, the court declined to consider
the responses to those arguments in the
Commission’s brief because they had
not been set forth in the Restoring
Internet Freedom Order.
5. The second discrete issue that the
D.C. Circuit remanded is how the
reclassification of broadband internet
access service affects the regulation of
pole attachments. The D.C. Circuit
noted petitioners’ ‘‘substantial concern
that, in reclassifying broadband internet
as an information service, the
Commission, without reasoned
consideration, took broadband outside
the current statutory scheme governing
pole attachments.’’ Our authority over
pole attachments pursuant to section
224 of the Act extends to attachments
made by a cable television system or
provider of telecommunications service.
States may ‘‘reverse preempt’’ our pole
attachment rules and adopt their own
rules governing pole attachments in
place of ours. The Mozilla court
acknowledged our observation that
facilities remain subject to pole
attachment regulation when deployed
by entities commingling broadband
internet access service with a service
covered by section 224 of the Act. The
D.C. Circuit found that our conclusion
was sound with respect to ‘‘providers
who ‘commingl[e]’ telecommunication
and broadband services’’ but incomplete
given the court’s view that post-
reclassification, ‘‘the statute textually
forecloses any pole-attachment
protection for standalone broadband
providers.’’ The Mozilla court
concluded that ‘‘[t]he Commission was
required to grapple with’’ the matter of
pole-attachment regulation for
broadband-only providers and
remanded the issue for further
consideration.
6. The third discrete issue that the
court remanded is the statutory basis for
broadband internet access service’s
inclusion in the Lifeline program. The
Lifeline program helps low-income
Americans gain access to affordable
communications services, and is part of
the Commission’s universal service
efforts to close the digital divide. First
created by the Commission in 1985,
Congress codified this commitment to
low-income consumers in the 1996
Telecommunications Act. Currently, the
Lifeline program offers qualifying low-
income consumers a discount of up to
$9.25 per month on voice, broadband
internet access service, or bundled
services that meet the program’s
minimum service standards. Consumers
who reside on Tribal lands can receive
a discount of up to $34.25 on Lifeline
service that satisfies the minimum
service standards. The D.C. Circuit
described petitioners’ concern ‘‘that
reclassification would eliminate the
statutory basis for broadband’s inclusion
in the [Lifeline] Program’’ and pointed
out that ‘‘Congress [ ] tethered Lifeline
eligibility to common-carrier status,’’
citing statutory language limiting the
designation of eligible
telecommunications carriers (ETCs) and
receipt of universal service support to
common carriers. Similarly, citing the
U.S. Court of Appeals for the Tenth
Circuit’s ‘‘observ[ation], before
broadband was classified as a
telecommunications service, that
‘broadband-only providers . . . cannot
be designated as ‘eligible
telecommunications carriers’ ’ because
‘under the existing statutory framework,
only ‘common carriers’ . . . are eligible
to be designated as ‘eligible
telecommunications carriers,’ ’’ the D.C.
Circuit concluded that the Restoring
Internet Freedom Order’s
reclassification of broadband internet
access service would appear to preclude
broadband’s inclusion in the Lifeline
Program. Consequently, the Mozilla
court ‘‘remand[ed] this portion of the
[Restoring Internet Freedom Order] for
the Commission to address.’’
II. Discussion
7. We address in turn each of the
three issues the Mozilla court remanded
and conclude that, in each case, there is
no basis to alter our conclusions in the
Restoring Internet Freedom Order.
Specifically, we examine the effects that
the Restoring Internet Freedom Order
might have on public safety
communications, pole attachment rights
for broadband-only providers, and the
universal service Lifeline program, as
well as how such possible effects bear
on the Commission’s underlying
decisions to classify broadband internet
access service as an information service
and eliminate the internet rules. Our
analysis below shows that the Restoring
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Internet Freedom Order promotes public
safety, facilitates broadband
infrastructure deployment for ISPs, and
allows us to continue to provide Lifeline
support for broadband internet access
service. Further, we conclude that any
potential negative effects that the
reclassification may have on public
safety, pole attachment rights for
broadband-only providers, and the
Lifeline program are limited and would
not change our classification decision in
the Restoring Internet Freedom Order
even if such negative effects were
substantiated. Rather, we find that that
overwhelming benefits of Title I
classification and restoration of light-
touch regulation outweigh any adverse
effects.
A. Public Safety
8. The Mozilla court directed us to
address the effect on public safety of the
‘‘changed regulatory posture’’ in the
Restoring Internet Freedom Order. The
Mozilla court focused in particular on
claims in the record concerning dangers
that might arise from ‘‘allowing
broadband providers to prioritize
internet traffic as they see fit, or to
demand payment for top-rate speed,’’
and how such actions ‘‘could imperil
the ability of first responders, providers
of critical infrastructure, and members
of the public to communicate during a
crisis.’’ Among other things, the D.C.
Circuit rejected our argument that ‘‘the
public safety issues . . . were
redundant of the arguments made by
edge providers,’’ finding instead that
‘‘unlike most harms to edge providers
incurred because of discriminatory
practices by broadband providers, the
harms from blocking and throttling
during a public safety emergency are
irreparable.’’
9. We find that neither our decision
to return broadband internet access
service to its long-standing classification
as an information service, nor our
subsequent decision to eliminate the
internet conduct rules, is likely to
adversely impact public safety. To the
contrary, our analysis reinforces our
determinations made in the Restoring
Internet Freedom Order, and we find
that on balance, the light-touch
approach we adopted and the regulatory
certainty provided by the Restoring
Internet Freedom Order benefit public
safety and further our charge of
promoting ‘‘safety of life and property’’
and the national defense though the use
of wire and radio communications. We
also find that even if there were some
adverse impacts on public safety
applications in particular cases—which
we do not anticipate—the
overwhelming benefits of Title I
classification would still outweigh any
potential harms.
1. The Commission’s Public Safety
Responsibilities
10. Advancing public safety is one of
our fundamental obligations. The Title I
approach spurs investment in a robust
network and innovative services, which
enhances the effectiveness of our work
to promote public safety consistent with
our statutory responsibilities. Indeed,
this has been the case over the almost
20 years during which broadband
internet access service (and, as
appropriate, mobile broadband internet
access service) was classified as a Title
I service.
11. As the D.C. Circuit explained,
when ‘‘ ‘Congress has given an agency
the responsibility to regulate a market
such as the telecommunications
industry that it has repeatedly deemed
important to protecting public safety,’
then the agency’s decisions ‘must take
into account its duty to protect the
public.’ ’’ We take seriously our public
safety responsibilities, as demonstrated
by a number of our recent actions. In
2019, for example, pursuant to Kari’s
Law Act of 2017 the Commission
required newly manufactured,
imported, sold, or leased multi-line
telephone systems—such as those used
by hotels and campuses—to allow users
to dial 911 directly, without having to
dial a prefix such as a ‘‘9’’ to reach an
outside line. We also adopted rules
pursuant to section 506 of the RAY
BAUM’S ACT to ensure that
‘‘dispatchable location’’ information,
such as the street address, floor level,
and room number of a 911 caller, is
conveyed with 911 calls so that first
responders can more quickly locate the
caller. More recently, we proposed
taking action to modernize the
Commission’s rules to facilitate the
priority treatment of voice, data, and
video services for public safety
personnel and first responders,
including removing outdated
requirements that may impede the use
of IP-based technologies. The
Commission has taken important
measures to increase the effectiveness of
Wireless Emergency Alerts (WEAs) by
requiring Participating Commercial
Mobile Service Providers to support
longer WEA messages; support Spanish-
language messages; create a new
message category (‘‘State/Local WEA
Tests’’); and further implement
enhanced geotargeting capabilities. We
have also urged wireless service
providers and electric power providers
to coordinate their response and
restoration efforts more closely
following disasters, resulting in the
establishment of the Cross Sector
Resiliency Forum in February 2020.
Further, to safeguard America’s critical
communications infrastructure from
potential security threats, we prohibited
the use of public funds from the
Commission’s Universal Service Fund
(USF) to purchase or obtain any
equipment or services produced or
provided by companies posing a
national security threat to the integrity
of communications networks or the
communications supply chain, and
proposed to require certain USF
recipients to remove and replace such
equipment and services from their
networks and reimburse them for doing
so. We also initially designated Huawei
Technologies Company (Huawei) and
ZTE Corporation (ZTE) as covered
companies for purposes of this rule, and
we established a process for designating
additional covered companies in the
future. Additionally, the Commission’s
Public Safety and Homeland Security
Bureau issued final designations of
Huawei and ZTE as covered companies,
thereby prohibiting the use of USF
funds on equipment or services
produced or provided by these two
suppliers. We also recently proposed,
pursuant to the Secure and Trusted
Communications Networks Act, to (1)
create a list of covered communications
equipment and services that pose an
unacceptable risk to the national
security of the United States or the
security and safety of United States
persons; (2) ban the use of federal
subsidies for any equipment or services
on the list of covered communications
equipment and services; (3) require that
all providers of advanced
communications service report whether
they use any covered communications
equipment and services; and (4)
establish regulations to prevent waste,
fraud, and abuse in the proposed
reimbursement program to remove,
replace, and dispose of insecure
equipment. In furtherance of our duties
to protect life, we also recently
designated 988 as the 3-digit number to
reach the National Suicide Prevention
Lifeline and required all service
providers to complete the transition by
July 16, 2022.
2. Overview of Public Safety
Communications Marketplace
12. Public safety communications fall
into two broad categories: (1)
Communications within and between
public safety entities, and (2)
communications between public safety
entities and the public. We review each
in turn.
13. Communications Among Public
Safety Entities. The record reflects that
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many public safety entities have access
to and make use of dedicated public
safety-specific and/or prioritized,
specialized enterprise-level broadband
services for data communications
between public safety officials. Perhaps
the most important example of a
dedicated network is the
Congressionally-created First Responder
Network Authority (FirstNet). In 2012,
Congress passed the Middle Class Tax
Relief and Job Creation Act, which in
part directed ‘‘the establishment of a
nationwide, interoperable public safety
network’’ to ‘‘ensure the deployment
and operation of a nationwide,
broadband network for public safety
communications’’—a resilient network
capable of supporting both data and
voice communications. The law granted
20 megahertz of spectrum to be used for
the network and allocated $7 billion of
funding. FirstNet is ‘‘explicitly designed
for fast, prioritized public safety
communications.’’ FirstNet offers
service priority and preemption, which
allow first responders to communicate
over an ‘‘always-on’’ network. Public
safety entities using FirstNet can boost
their priority levels during emergency
situations ‘‘to ensure first responder
teams stay connected’’ even when
networks are congested. AT&T describes
preemption as an ‘‘enhanced’’ form of
priority service because it ‘‘shifts non-
emergency traffic to another line,’’
which ensures national security and
emergency preparedness users’
communications are successfully
completed. According to AT&T, priority
and preemption support voice calls,
‘‘text messages, images, videos, location
information, [and] data from apps . . .
in real time.’’ In the first half of 2019,
the monthly numbers of device
connections to FirstNet ‘‘outperformed
expectations at approximately 196% of
projected targets.’’ In May 2019, ‘‘a
majority of agencies and nearly 50% of
FirstNet’s total connections were new
subscribers (not AT&T migrations).’’ As
of August 2019, FirstNet was deployed
in all 50 states, and nearly 9,000 public
safety agencies and organizations were
subscribers of the network. The number
of public safety agencies subscribing to
FirstNet services continues to increase.
Recent data suggests that more than
12,000 public safety agencies and
organizations—accounting for over 1.3
million connections nationwide—
subscribe to FirstNet services. These
trends suggest that first responders
recognize the benefits of prioritization,
preemption, and other innovative
features that enhance public safety
communications. The record reflects
that ‘‘[m]ore and more, public safety is
relying on the FirstNet core and public
safety’s own dedicated network for
critical public safety communications—
one that offers faster performance than
commercial networks.’’ The Spectrum
Act requires FirstNet to apply for
renewal of its license after 10 years (i.e.,
in 2022). The Act states that to obtain
renewal, FirstNet must demonstrate that
‘‘during the preceding license term, the
First Responder Network Authority has
met the duties and obligations set forth
under [the Spectrum] Act.’’
14. As we observed previously, other
service providers have recently begun
offering or enhanced their public safety
services to compete with FirstNet. For
example, Verizon offers services
designed for first responders and public
safety entities through its public safety
private core that include the ability to
prioritize public safety communications
to ensure that they stay connected
during emergencies. Such services also
provide an extra layer of assurance that
public safety communications will
continue to operate during peak times.
In addition, public safety users ‘‘have
access to several . . . enhanced
services’’ from Verizon, including
Mobile Broadband Priority Service and
data preemption. These services
‘‘provide public safety users priority
service for data transmissions’’ by giving
users priority over commercial users
during periods of heavy network
congestion and ‘‘reallocat[ing] network
resources from commercial data/internet
users to first responders’’ if networks
reach full capacity.
15. Similarly, U.S. Cellular offers
‘‘enhanced data priority services for first
responders and other emergency
response teams.’’ The company uses a
‘‘dedicated broadband LTE network that
separates mission-critical data from
commercial and consumer traffic,’’
ensuring that national security and
emergency preparedness personnel
‘‘have access to vital services’’ during
emergency situations. In addition to
prioritizing network access, U.S.
Cellular uses preemption ‘‘to
automatically and temporarily reallocate
lower priority network resources to
emergency responders so they can stay
connected during emergencies or other
high-traffic events.’’ T-Mobile also
launched a specialized set of rate plans
for first responder organizations in early
2019, aimed at addressing these
organizations’ needs that their high-
speed data allowance not run out or be
slowed during emergencies. These
dedicated or specialized types of service
plans allow first responder
organizations to receive unlimited
smartphone or hotspot data that receives
high priority on the network at all times.
T-Mobile is also expanding these efforts
by offering Connecting Heroes, a
program launching later this year to
provide a version of this service for free
to U.S. state and local public and non-
profit law enforcement, fire, and
emergency medical services (EMS)
agencies.
16. Though many communications
between public safety entities
increasingly take advantage of these
enterprise-level dedicated public safety
broadband services, the record reflects
that public safety entities employ
broadband internet access services for
their communications between public
safety officials as well. As the
Association of Public-Safety
Communications Officials-International,
Inc. (APCO) explains, public safety
agencies rely on retail broadband
services for a variety of public safety
applications, including for example,
accessing various databases, sharing
data with emergency responders,
translating communications with 911
callers and patients in the field,
streaming video into 911 and emergency
operations centers, and accessing
critical information about a 911 caller
that is not delivered through the
traditional 911 network.
17. While this proceeding focuses on
a specific data service—broadband
internet access service—we note that the
universe of public safety to public safety
communications extends beyond this
particular service. The enterprise
services described above often provide a
viable alternative for states and
localities to purchase dedicated
broadband connections to use for public
safety communications. In addition,
voice services continue to play an
important role. The Commission has
historically supported these efforts
through the establishment of three
priority services programs that support
prioritized voice services for public
safety users. The Telecommunications
Services Priority System (TSP)
authorizes the ‘‘assignment and
approval of priorities for provisioning
and restoration of common-carrier
provided telecommunication services’’
and ‘‘services which are provided by
government and/or non-common
carriers and are interconnected to
common carrier services.’’ The
Government Emergency
Telecommunications Service (GETS)
‘‘provides government officials, first
responders, and NSEP personnel with
‘priority access and prioritized
processing in the local and long
distance segments of the landline
networks, greatly increasing the
probability of call completion.’ ’’ And,
the Wireless Priority Service program
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(WPS) provides ‘‘prioritized voice
calling for subscribers using
Commercial Mobile Radio Service . . .
networks.’’ As noted above, we recently
proposed modernizing these rules to
broaden the scope of information
covered to address data and video and
to remove outdated requirements that
may impede the use of IP-based
technologies.
18. Communications Between Public
Safety Entities and the Public.
Communications between public safety
entities and the public occur using a
wide array of communications
technologies. With respect to broadband
services, the record reflects broad
consensus that not only do public safety
entities and first responders need to be
able to communicate rapidly and
reliably with each other during crisis
situations, but members of the public
using mass-market services must also be
able to easily and efficiently
communicate with first responders and
access public safety resources and
information. As the County of Santa
Clara states, ‘‘[T]he fundamental work of
government, including public safety
personnel, is outward facing: To protect
our residents, we must be able to
communicate with them, and they with
us.’’ The record suggests that most data
communications between public safety
entities and individuals likely take
place over broadband internet access
services, and not enterprise or dedicated
services. As CTIA explains, consumers
regularly use their mobile devices and
broadband connections ‘‘to access
broadly available information regarding
threatening weather, shelter-in-place
mandates, ongoing active-shooter
scenarios, and other matters essential to
public safety.’’ Members of the public
often rely on broadband services during
emergencies to enable them to find and
receive potentially life-saving
information, and to allow public safety
officials to build on-the-ground
situational awareness with information
they gather from residential broadband
service users. First responders can also
gain valuable information from
members of the public through mass-
market broadband access, such as when
‘‘citizens used hashtags to flag rescuers
and to compile helpful databases’’ in the
wake of Hurricane Harvey in 2017.
19. Further, ‘‘public safety’’
communications may encompass more
than just communications during
emergencies, as the COVID–19
pandemic has demonstrated, with many
Americans relying on telemedicine over
mass-market broadband services for
‘‘routine health care, triage, and basic
health advice’’ as well as for updates on
public health information and stay-at-
home and quarantine orders. 5G
networks’ ability to transmit massive
amounts of data in real time will also
help enable new applications that will
allow more advanced communications
between the public and health care
officials, such as allowing health care
professionals, through ubiquitous
wireless sensors, to remotely monitor
patients’ health and transmit data to
their doctors before problems become
emergencies, and to develop connected
ambulance services for faster patient
transport.
20. Non-data and one-way broadcast
communications services, notably
including members of the public making
use of voice services to call 911,
continue to play a central role in public
safety communications between
Americans and public safety entities.
Consistent with Congressional direction,
the Commission has ‘‘designate[d] 9–1–
1 as the universal emergency telephone
number within the United States for
reporting an emergency to appropriate
authorities and requesting assistance,’’
and has adopted regulations designed to
improve its performance and
effectiveness. Audio and video
communications also are important for
public safety communications to the
public, including for communicating
emergency alerts. The Emergency Alert
System is a national public warning
system through which broadcasters,
cable systems, and other service
providers deliver audio alerts that
include modulated data that can be
converted into a visual message to the
public to warn them of impending
emergencies and dangers to life and
property in accordance with
Commission regulations. In addition,
communications via text message also
have taken on an important public
safety role, including through
Commission-mandated text-to-911
capabilities and Wireless Emergency
Alerts. Consistent with its statutory
duties, the Commission has played a
major role in establishing and
facilitating these means of
communication between public safety
entities and the public.
3. The Benefits of Increased Innovation,
Investment, and Regulatory Certainty
Provided by the Restoring Internet
Freedom Order Will Enhance Public
Safety
21. In the Restoring Internet Freedom
Order, the Commission ‘‘eliminat[ed]
burdensome regulation that stifles
innovation and deters investment’’ and
predicted that ‘‘this light-touch
information service framework will
promote investment and innovation.’’
The Mozilla court affirmed this finding,
concluding that our position as to the
economic benefits of reclassification
away from public-utility style
regulations was ‘‘supported by
substantial evidence.’’ The record
reflects that our finding applies just as
much, if not more so, to public safety
communications. Consistent with our
findings in the Restoring Internet
Freedom Order, a number of
commenters assert that the
Commission’s reclassification of
broadband internet access services has
‘‘restored a regulatory environment that
encourages robust investment in
broadband networks and facilities that
can be used for many purposes,
including public safety purposes,’’ and
that this light-touch regulatory
environment has improved and
expanded the resources available to
public safety entities and consumers
alike. Though many factors affect ISPs’
investment decisions, these comments
lend support to our findings in the
Restoring Internet Freedom Order that
‘‘reclassification of broadband internet
access service from Title II to Title I is
likely to increase ISP investment and
output’’ and that the ‘‘ever-present
threat of regulatory creep is
substantially likely to affect the risk
calculus taken by ISPs when deciding
how to invest their shareholders’
capital, potentially deterring them from
investment in broadband.’’ Given the
variety of factors and the limited nature
of the scope of the remand and
subsequent record, described below, we
do not reopen or expand on these
predictions at this time. We reject the
argument that AT&T’s plan to
grandfather legacy DSL services (with
speeds ranging from 788 kbps to 6
Mbps) undermines our reliance on the
likelihood of increased investment as a
result of the Restoring Internet Freedom
Order. The Mozilla court has already
affirmed the Commission’s finding that
the Restoring Internet Freedom Order is
likely to promote investment and
deployment. In any event, AT&T’s filing
demonstrates that its customers in the
service areas referenced by Public
Knowledge et al. have plenty of options
for broadband internet access service (at
speeds of 10 Mbps and higher). Finally,
we observe that the reclassification of
broadband internet access service as an
information service had no effect on the
Commission’s authority over ISPs’
discontinuance of broadband services,
as the Commission explicitly forbore
from section 214 with respect to
broadband internet access services in
the Title II Order.
22. As described above, an increasing
number of public safety entities
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subscribe to enterprise-level quality-of-
service dedicated public safety data
services. While the Greenlining Institute
raises concerns that the record does not
specify the number of public safety
entities that purchase enterprise-grade
services, or the affordability and
competitiveness of the fees for such
services, we observe several
commenters explained the widespread
nature of such services. For example,
NCTA explains that one of its members
provides data connectivity solutions
‘‘for thousands of public safety entities,
including police and fire departments,
hospitals, ambulance services, public
safety dispatchers, medical dispatch
centers, and 911 providers throughout
the country.’’ Further, as noted above, as
of August 2019, FirstNet was deployed
in all 50 states, and nearly 9,000 public
safety agencies and organizations were
subscribers of the network. As Verizon
explains, public safety entities generally
purchase enterprise service contracts
that are ‘‘similar to other large
agreements that government entities use
to buy most goods and services on
favorable terms for a fair price,’’
explaining that some states use master
agreements negotiated by nationwide
purchases organizations such as the
National Association of State
Procurement Offices, for example. We
also note that because such services
were excluded from regulation under
the Title II Order, that Order did not
reduce the costs of such services in any
case. These types of plans were not
subject to the requirements of the Title
II Order or the Open Internet Order (76
FR 59192, Sept. 23, 2011). However,
even these non-mass-market offerings
benefit from the Restoring Internet
Freedom Order’s light-touch approach,
regulatory certainty, and likely
investment incentives because they
often make use of infrastructure that
also is used to facilitate broadband
internet access services (e.g., middle
mile connections). As CTIA states,
‘‘[r]obust and expansive broadband
infrastructure benefits both consumers
and public safety personnel, whether
they rely on mass-market connectivity
or enterprise offerings, because even
infrastructure built principally to serve
mass-market broadband consumers
(such as middle-mile networking)
increases overall network capacity,
improving the experience of enterprise
and government users and those
utilizing non-[broadband internet access
service] data services.’’ Further, as
broadband speeds and other
performance characteristics continue to
improve, the range of public safety
services and applications that could
potentially be offered over these
networks expands.
23. The record reflects that the
regulatory certainty and light-touch
approach the Restoring Internet
Freedom Order affords also likely gives
ISPs stronger incentives to upgrade
networks to 5G, paving the way for new
and innovative applications and
services that can benefit public safety.
5G networks’ ability to transmit massive
amounts of data in real time will help
enable new applications that provide
immediate situational awareness to
enable public safety professionals and
first responders to ‘‘provide more
informed support and make better
decisions during an emergency.’’ For
example, 5G capabilities will enable
search and rescue drones and other
unmanned vehicles to reach areas that
would otherwise be inaccessible, and
will also help enable products ‘‘like
augmented reality headsets that can
help firefighters see through smoke, and
create augmented disaster mapping that
helps rescue teams get a clearer picture
of the situation on the ground.’’ The
deployment and growth of 5G and the
innovative applications it will enable
will have clear public safety benefits,
and we believe that our light-touch,
market driven approach likely has, and
likely will continue, to encourage ISPs’
investments in these networks.
24. The record reflects that improved,
more robust broadband networks and
services also have obvious and
significant benefits for communications
between public safety entities and the
public. According to one commenter,
‘‘[t]hree in ten Americans describe
themselves as ‘constantly’ online,’’ and
that ‘‘the best way to reach them will be
for public safety communication to also
take place online.’’ As the Edward Davis
Company explains, ‘‘better, faster, and
more widespread broadband
connections make it easier for the public
to contact public safety in times of need
and help public safety respond more
quickly.’’ Indeed, the Public Safety
Broadband Technology Association
asserts that light-touch regulation
‘‘promotes extensive deployment and
quick adoption of fast broadband, which
enables citizens to reach public safety
more easily in times of need.’’ Similarly,
USTelecom observes that increased
investment has ‘‘given rise to robust,
reliable, and resilient networks that
improve consumers’ access to public
safety information, providing first
responders and other government
agencies with new and innovative ways
to communicate and share, analyze, and
act on information during emergencies.’’
25. The COVID–19 pandemic has
brought that point into stark relief. The
robustness and reliability of ISPs’
networks have helped make possible the
large-scale changes to daily life,
including reliance on telework, digital
learning, telehealth, and online
communications with local and state
officials. The record demonstrates that,
even with unprecedented increases in
traffic during the COVID–19 pandemic,
broadband networks have been able to
handle the increase in traffic and shift
in usage patterns. The ability of these
networks to absorb major increases in
traffic has allowed Americans to
maintain social distancing, which
experts have found to yield tremendous
public health and safety benefits by
‘‘flattening the curve’’ of viral
transmissions. USTelecom observes that
one study showed that out of the ten
countries with the highest populations
in the world, the United States was the
only country to not experience any
download speed degradation in April
2020. Further, unlike the European
Union, which takes a utility-style
approach to broadband regulation and
has had to request that bandwidth
intensive services such as Netflix reduce
video quality in order to ease stress on
its network infrastructure, the United
States has not had to take similar steps,
despite similar surges in internet traffic.
This country’s robust and resilient
broadband networks are, in significant
part, the result of over two decades of
almost continuous light-touch
regulation, which has promoted
substantial infrastructure investment
and deployment. For the foregoing
reasons, we conclude that our decision
to return broadband internet access
service to its historical information
service classification benefits public
safety communications by encouraging
the deployment of more robust, resilient
broadband services networks and
infrastructure over which public safety
communications to, from, and among
the public ride.
4. The Restoring Internet Freedom Order
Is Unlikely To Harm Public Safety
Communications, and Any Harm That It
Could Cause Would Be Minimal
26. We find that our reclassification
and rule determinations in the Restoring
Internet Freedom Order are not likely to
adversely affect public safety
communications over broadband
internet access service. First, we explain
why the same protections we identify in
the Restoring Internet Freedom Order as
sufficient to protect openness
generally—transparency, antitrust, and
consumer protection law—equally
protect the openness of public safety
communications. Next, we find an
absence of evidence of harms to public
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safety communications arising from the
Restoring Internet Freedom Order or
from the two-decade history of light-
touch regulation of the internet. We
then review assertions regarding
specific forms of possible harm to
public safety communications—
blocking, throttling, loss or delay due to
paid prioritization, barriers to
communications by individuals with
disabilities, and damage to the safety
and reliability of critical
infrastructure—and conclude that the
record reflects insufficient evidence of
such harms as a result of the Restoring
Internet Freedom Order or that such
harms are likely to arise. Finally, we
conclude that even if a harm to public
safety communication were to somehow
arise from the Restoring Internet
Freedom Order, its impact would be
limited because broadband internet
access service, while important, is only
a part of the broader public safety
communications ecosystem. As such,
we reject assertions by Public
Knowledge et al. that ‘‘[i]n making its
finding that reclassification and
elimination of the rules will not harm
public safety, the Commission focuses
strictly on the question of prioritization
of service.’’
27. Transparency, Antitrust, and
Consumer Protection Laws Prevent
Harms. The protections highlighted in
the Restoring Internet Freedom Order
are important factors in preserving the
openness of public safety
communications over broadband
internet access service. Among these
protections are the transparency rules
we adopted, which ‘‘require ISPs to
disclose any blocking, throttling,
affiliated prioritization, or paid
prioritization in which they engage.’’ As
we explained in the Restoring Internet
Freedom Order—in analysis that the
Mozilla court upheld as reasonable—
‘‘[h]istory demonstrates that public
attention, not heavy-handed
Commission regulation, has been most
effective in deterring ISP threats to
openness and bringing about resolution
of the rare incidents that arise. The
Commission has had transparency
requirements in place since 2010, and
there have been very few incidents in
the United States that plausibly raise
openness concerns.’’ ‘‘Transparency
thereby ‘increases the likelihood that
harmful practices will not occur in the
first place and that, if they do, they will
be quickly remedied.’ ’’
28. Indeed, many ISPs, including all
major ISPs, have gone further than
disclosing their policies by making
‘‘enforceable commitments to maintain
internet openness.’’ As NCTA explains,
‘‘[a]ll major broadband providers have
now publicly made enforceable
commitments not to engage in conduct
that violates consensus open internet
principles.’’ ISPs have made these
commitments despite the lack of Title II
regulation, and the record reflects that
ISPs recognize the importance of these
commitments with respect to public
safety communications—for example,
Comcast explains that its incentives to
adhere to public commitments to open
internet protections ‘‘are rightly even
stronger . . . when it comes to serving
the public safety community,
particularly first responders during an
emergency.’’ We disagree with Free
Press’s assertions that the ‘‘notion that
transparency and shaming will
discipline carriers is a vain hope.’’ We
observe that the Mozilla court has
already upheld the Commission’s
findings regarding reliance on the
transparency rule. These commitments
are not merely empty promises with no
binding effect; instead, as a direct result
of the Restoring Internet Freedom Order,
the terms of such commitments are now
enforceable by the Federal Trade
Commission (FTC), the nation’s premier
consumer protection agency. Indeed, a
Memorandum of Understanding
between the Commission and the FTC
states that the FTC will ‘‘investigate and
take enforcement action as appropriate
against internet service providers for
unfair, deceptive, or otherwise unlawful
acts or practices, including . . . actions
pertaining to the accuracy of the
disclosures such providers make
pursuant to the Internet Freedom
Order’s requirements, as well as their
marketing, advertising, and promotional
activities.’’
29. Commitments to transparency
carry particular force in the context of
public safety communications because
of the strong incentive for ISPs to
maintain or improve their reputations
by protecting such communications. As
NCTA explains, ‘‘broadband providers
recognize the vital importance of
ensuring robust and reliable networks
for public safety communications, and
know that they would need to answer to
customers and policymakers if their
practices were to threaten to hamper
public safety in any way.’’ In addition,
there are strong business incentives for
broadband providers to ensure that
public safety communications remain
unharmed. ISPs have more than
business incentives to ensure that
broadband communications remain
unhampered by harmful network
management practices. As ACA
Connects explains, the community-
based providers that it represents also
‘‘have a personal stake in ensuring the
safety of their neighbors, family and
friends.’’ As we previously found in the
Restoring Internet Freedom Order, even
when public safety is not at stake, it is
likely that ‘‘any attempt by ISPs to
undermine the openness of the internet
would be resisted by consumers and
edge providers.’’
30. Likewise, consistent with our
findings in the Restoring Internet
Freedom Order, we find that antitrust
law can also protect consumers from
practices that may hinder their ability to
access public safety resources and
similarly helps protect public safety
communications over broadband
internet access service from blocking,
throttling, alleged degradation due to
paid prioritization, and other harms to
openness. The antitrust laws,
particularly sections 1 and 2 of the
Sherman Act, as well as section 5 of the
FTC Act, protect competition in all
sectors of the economy, including
broadband internet access.
Consequently, if an ISP attempts to
block or degrade traffic in a manner that
is anticompetitive, relief may be
available under the antitrust laws.
Moreover, to the extent an ISP has
market power, antitrust laws could be
used to address any anticompetitive
paid prioritization practices by an ISP.
As we explained in the Restoring
internet Freedom Order, ‘‘[o]ne of the
benefits of antitrust law is its strong
focus on protecting competition and
consumers.’’ If the types of conduct and
practices that had been prohibited
under the Title II Order were challenged
as anticompetitive under the antitrust
laws, such conduct would likely be
evaluated under the ‘‘rule of reason,’’
which amounts to a consumer welfare
test. A welfare approach was established
in Reiter v. Sonotone Corp., 442 U.S.
330, 343 (1979). The transparency rule
the Commission adopted amplifies the
power of antitrust law and the FTC Act
to deter and, where needed, remedy
behavior that harms consumers,
including for public safety purposes.
31. Further, consistent with our
conclusion in the Restoring Internet
Freedom Order, we believe that
consumer protection laws also help
protect public safety communications
from practices that could harm
openness. The FTC has broad authority
to protect consumers from ‘‘unfair and
deceptive acts or practices.’’ The FTC’s
unfair-and-deceptive-practices authority
‘‘prohibits companies from selling
consumers one product or service but
then providing them something
different,’’ which makes voluntary
commitments not to engage in blocking,
throttling, or paid prioritization
enforceable. The FTC also requires the
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‘‘disclos[ur]e [of] material information if
not disclosing it would mislead the
consumer,’’ so if an ISP ‘‘failed to
disclose blocking, throttling, or other
practices that would matter to a
reasonable consumer, the FTC’s
deception authority would apply.’’
Reclassification restored the FTC’s
authority to enforce those consumer
protection requirements in the case of
broadband internet access service.
Indeed, the FTC has already
successfully used its authority to pursue
a complaint against AT&T for allegedly
deceptively marketing one of its own
mobile broadband subscription plans.
And all states have laws proscribing
deceptive trade practices.
32. The D.C. Circuit found that the
Commission’s reliance on antitrust and
consumer protection laws to limit
anticompetitive behavior was
reasonable, especially as part of the
broader regulatory and economic
framework, and we do not revisit those
prior Commission findings here. Nor do
we find that reasoning substantially
diminished when public safety concerns
are at issue. For one, that reasoning
retains its full force with respect to
protections that flow from the ISPs’ own
public statements. ISPs know that their
public statements regarding network
management—whether made to comply
with our transparency rule or
otherwise—are subject to enforcement
by the FTC. Thus, ISPs’ public
statements, in effect, create ex ante
requirements to which they are bound.
The record does not reveal that
enforcement of those statements, such
as through the FTC’s consumer
protection authority, would be any less
effective at preventing contrary ISP
conduct than would enforcement of
Commission rules prohibiting the same
network management practices.
33. Consumer protection and antitrust
laws help guard against risks from
conduct not foreclosed by providers’
public statements, as well. The record
here does not reveal credible claims that
ISPs would somehow target their
conduct to harm public safety in a
manner that would require ex ante
public safety-focused legal protections.
Instead, commenters’ concerns here
reflect the view that the ISP conduct
that could lead to public safety harms is
the same conduct about which concerns
have been expressed more generally,
even if the consequences of such
conduct could be particularly dire in the
public safety context. Because consumer
protection and antitrust laws help
safeguard users of broadband internet
access service from conduct that could
undermine internet openness—and
because that same conduct underlies the
public safety concerns expressed by
commenters here—those laws help
address any public safety concerns
notwithstanding their lack of an express
public safety focus. Although some
commenters observe that antitrust and
consumer protection laws are not
framed with a focus on public safety
concerns, neither the Title II regulatory
framework nor the restrictions on ISP
conduct in the bright line and general
conduct rules adopted in the Title II
Order specified particular restrictions
on ISPs in connection with public
safety, either. Although ‘‘traffic
prioritization . . . practices that serve a
public safety purpose, may be
acceptable under our rules as reasonable
network management’’ under the Title II
Order, the restrictions on ISP conduct
under the bright line rules were not
framed in terms of public safety, nor did
the factors identified by the Commission
to guide the application of its general
conduct rule focus on public safety
concerns. This conclusion is not
diminished by the fact that the
Commission did adopt a public safety-
focused carve-out from those conduct
rules because that carve-out rule did not
restrict ISP conduct in any way. In sum,
even the Title II Order itself thus
adopted rules restricting ISP conduct
that it anticipated ultimately could
benefit public safety, notwithstanding
the lack of a public safety focus.
Consequently, although we do not
presume that consumer protection and
antitrust laws themselves provide
perfect protections against all possible
public safety concerns, we conclude
that they do still provide significant
protections notwithstanding their lack
of an express public safety focus, and
rely on them in conjunction with the
broader range of considerations that
collectively persuade us that public
safety harms are unlikely under our
regulatory framework in the Restoring
Internet Freedom Order. Even ex post
FTC enforcement of such conduct as
‘‘unfair’’ or anticompetitive practices
would have a significant effect by
causing providers to avoid conduct in
the first instance if it has the potential
to result in liability under those legal
regimes. We anticipate a similar
deterrent effect from consumer
protection laws. Although the Mozilla
court noted that the record reflected
concern about adequacy of ex post
enforcement in the public safety context
to the extent that such potential for
enforcement did not fully deter harmful
ISP conduct from occurring, we find
that to be a far more limited concern
than some commenters claim. As a
threshold matter, while the court
focused on commenters’ concerns about
‘‘dire, irreversible’’ public safety
consequences from ISP conduct such as
loss of life, commenters here raise a
wide array of situations with a claimed
nexus to safety of life and property
where it is doubtful that ISP conduct—
even assuming arguendo that it
occurred and had momentary effects on
the relevant applications—would result
in meaningful harm, let alone loss of
life. More fundamentally, we rely on
transparency, consumer protection laws,
and antitrust laws only as one part of a
broader set of considerations that
collectively persuade us that public
safety harms are unlikely to result from
the regulatory approach in the Restoring
Internet Freedom Order. For example,
ISPs’ conduct in the first instance is
likely to be informed by the highly
probable reputational effects. In
addition, as we explain below, even if
ISP conduct like paid prioritization
were to occur, the record does not reveal
likely practical harm to applications
used for public safety communications
over mass market broadband internet
access service. We note that such public
safety communications often occur over
specialized networks which generally
include quality-of-service guarantees—
unlike best efforts broadband internet
access service—which further limits the
scope of communications potentially
affected.
34. Absence of Proven Harms. The
internet has been subject to light-touch
regulation for the entirety of the time
since enactment of the 1996 Act, apart
from the short period in which the Title
II Order controlled. Further, during
most of the past two decades, the
Commission did not have in place
potentially enforceable attempts at
conduct regulation. The Commission
adopted the Comcast-BitTorrent Order,
which attempted to directly enforce
Federal internet policy that it drew from
various statutory provisions, in August
2008. On April 6, 2010, the U.S. Court
of Appeals for the D.C. Circuit rejected
the Commission’s action, holding that
the Commission had not justified its
action as a valid exercise of ancillary
authority. The Commission adopted the
Open Internet Order in December 2010,
but it was not effective until some
months later. The Verizon court
decision was decided on January 14,
2014, and the Title II Order was not
adopted until over a year later, on
February 26, 2015, and became effective
several months later. Yet for all this
time from which to draw, commenters
claiming that the Restoring Internet
Freedom Order harms public safety
communications are only able to point
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to a few heavily-contested public-safety-
related incidents. Notably, none of the
claims arises from the time period prior
to the existence of rules governing ISPs.
Even if these claims were valid—and we
find below that they are not—they do
not establish a compelling basis to
reconsider the Restoring Internet
Freedom Order’s determinations and
impose preemptive, industry-wide,
utility-style regulations. The dearth of
evidence of practices harmful to public
safety is unsurprising, as ISPs lack an
economic incentive to engage in
practices such as blocking or throttling,
especially when these practices may
harm public safety.
35. Commenters opposing the
Restoring Internet Freedom Order
repeatedly cite as support a 2018
incident involving the decrease in the
Santa Clara, California fire department’s
broadband service speed during an
emergency. However, as explained
below, the changed regulatory posture
in the Restoring Internet Freedom Order
had no bearing on how this incident
played out, both because the broadband
service at issue was not subject to either
regulatory regime and because the
provider’s conduct would not have been
prohibited under the Title II Order even
if it did apply. Notably, no commenter
contested in their reply comments other
commenters’ claims that the incident
would not have been prevented under
the Title II Order. The County of Santa
Clara asserts that while the County’s
firefighters were ‘‘in the midst of
fighting the Mendocino Complex Fire in
the summer of 2018, Verizon severely
throttled the broadband internet’’ of the
fire department, which prevented the
department’s equipment ‘‘from tracking,
organizing, and prioritizing resources
from around the state and country to
where they are most urgently needed.’’
The County of Santa Clara concedes that
Verizon reduced the speed of the fire
department’s broadband service because
the fire department’s account had
exceeded its monthly data cap.
Although Verizon’s established practice
was to not enforce data speed
restrictions on public safety users’ plans
during emergency situations, a customer
service error led to the speed of the fire
department’s service being reduced
despite this policy. Verizon contends
that once its management learned of the
customer’s complaint, Verizon
‘‘immediately and publicly addressed
the situation, including by updating
training for call center representatives to
ensure that they are aware that they
must promptly remove any data
throughput limitations for first
responders in an emergency. That same
week, Verizon introduced a new plan
for public safety customers that
eliminated any data speed restrictions
for first responders, at no additional
cost, and that gave other public safety
customers two month’ leeway before
any throughput limitation would be
enforced.
36. As an initial matter, the Santa
Clara incident is not relevant to an
analysis of the effect of the Restoring
Internet Freedom Order on public
safety. Because the fire department’s
service plan from Verizon was an
enterprise plan rather than a mass-
market service, it is not a broadband
internet access service under either the
Title II Order or the Restoring Internet
Freedom Order. Even if the service plan
had been a mass-market service,
however, the record does not
demonstrate that it would have run
afoul of the Title II Order. Neither the
classification of broadband internet
access service as a telecommunications
service nor the Title II Order’s bright
line rules prohibited data use caps such
as the one in the fire department’s
service plan. In fact, the Title II Order
specifically explained that ‘‘[a]
broadband provider may offer a data
plan in which a subscriber receives a set
amount of data at one speed tier and any
remaining data at a lower tier.’’ Neither
does the record demonstrate that the
possibility of case-by-case review of
data caps under the general conduct
rule—with its uncertain outcomes—
would have prohibited such plans.
Following the incident, to avoid another
such error, Verizon took a number of
steps, such as ‘‘updating training for call
center representatives to ensure that
they are aware that they must promptly
remove any data throughput limitations
for first responders in an emergency’’
and ‘‘introducing a new plan for public
safety customers that eliminated any
data speed restrictions for first
responders, at no additional cost.’’
Thus, the issue was quickly addressed
due to public awareness and market-
based pressure on Verizon to take swift
corrective action—precisely the
mechanisms that we anticipated would
be most effective under the Restoring
Internet Freedom Order’s light-touch
approach. Further, the record does not
provide demonstrable evidence that the
Title II Order regime would have
resulted in any incremental benefit. We
disagree with Free Press’ assertion that
‘‘Title II allowed the Commission to do
more than just enforce those Net
Neutrality rules. It also empowered the
Commission to assess and prevent other
forms of unjust or unreasonable
behavior—which may well have
included Verizon’s decision to cap and
throttle firefighters during an
emergency. . . .’’ It is undisputed that
Verizon’s plan with respect to Santa
Clara County was not a broadband
internet access service offering;
therefore, as discussed above, it would
not have been subject to the internet
conduct rules under the Title II Order,
including the no unreasonable
interference/disadvantage standard.
37. We also disagree with ADT that
two incidents from 2015 and 2016
warrant Commission rules prohibiting
blocking and throttling of public safety-
related services. ADT alleges an
incident occurred in 2015, in which a
number of its customers in Puerto Rico
using a specific broadband provider
suddenly lost the ability to use features
of its home automation service that
enables customers to control their alarm
systems remotely or to access their
video surveillance cameras, and
another, similar incident occurred on
the mainland in 2016. We considered
and rejected such concerns as a basis for
conduct rules in the Restoring Internet
Freedom Order, however, explaining
that ‘‘it is unclear if the blocking was
intentional and the blocking was
resolved informally.’’ ADT does not
provide any new information here that
justifies revisiting those observations.
Further, we observe that ADT has not
pointed to any such issues since the
adoption of the Restoring Internet
Freedom Order, consistent with our
expectation that ISPs are unlikely to risk
the reputational damage of engaging in
such practices. In addition, our
transparency rule requires ISPs to
disclose such practices, which would
enable alarm services companies like
ADT to address such issues in a timely
manner. Indeed, ADT itself recognizes
that the currently mandated disclosures
‘‘provide a framework for ensuring that
public safety and alarm company
communications using broadband
services are afforded protections against
unintentional blocking or throttling, that
they are informed of mechanisms to
promptly restore services, including any
repair or restoration performance
metrics, and that they are provided
contact information necessary to trigger
ISP corrective actions.’’ ADT urges us to
‘‘remind ISPs that they must
prominently display contact
information and sufficiently disclose
the[ ] mechanisms to have service
promptly restored in the event of
inadvertent blocking or throttling of
broadband services.’’ We restrict this
Order on Remand to addressing the
issues specifically remanded by the D.C.
Circuit and decline to comment upon or
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interpret other aspects of the Restoring
Internet Freedom Order such as the
transparency requirements. We do note,
however, that ISPs remain obligated to
fulfill all transparency obligations set
forth in the Restoring Internet Freedom
Order, including disclosure of redress
options. Relevant to its concerns about
discrimination by ISPs with competing
alarm monitoring services, ADT notes
that ISPs have ‘‘stated commitments to
refrain from engaging in unreasonable
discrimination’’ and recognizes that
‘‘[f]ailure to comply with disclosed
practices exposes ISPs to liability.’’
Thus, we conclude that the incidents
cited by ADT do not justify revisiting
the regulatory approach we adopted in
the Restoring Internet Freedom Order.
38. Speculation Regarding Specific
Forms of Harm. We next review
speculative claims in the record
regarding various specific types of harm
to public safety communications that
allegedly could arise from the Restoring
Freedom Order. In each case, we find no
evidence that the form of harm at issue
has occurred and conclude that such
harm is unlikely to arise as a result of
the Restoring Internet Freedom Order.
39. Speculative Harm—Blocking and
Throttling. We disagree with
commenters who assert that the
Restoring Internet Freedom Order will
lead to ISPs engaging in blocking and
throttling practices that harm public
safety. As an initial matter, all major
ISPs have made written commitments
not to engage in practices considered to
violate open internet principles,
including blocking and throttling. Even
in the absence of such commitments, as
we previously found in the Restoring
Internet Freedom Order, it is likely that
‘‘any attempt by ISPs to undermine the
openness of the internet would be
resisted by consumers and edge
providers.’’ Consequently, ISPs lack an
economic incentive to engage in
practices such as blocking or throttling,
especially when these practices may
harm public safety. As the D.C. Circuit
explained, ‘‘the harms from blocking
and throttling during a public safety
emergency are irreparable.’’ We agree,
and as such note ISPs’ enforceable
commitments against blocking and
throttling, and again note that such
emergency communication often occur
over specialized, non-mass market data
services to maintain quality-of-service.
Even if, as the County of Santa Clara et
al. claims, ‘‘[i]t is difficult, if not
impossible for governments to identify
harm caused by violations of net
neutrality principles,’’ we observe that it
would be as difficult to detect violations
of binding net neutrality rules as it is
voluntary commitments. We observe
that the record lacks evidence of
blocked or throttled public safety as a
result of the reclassification of
broadband internet access service as an
information service and the elimination
of the internet conduct rules. Thus, we
find no basis on this record to conclude
that ISPs have engaged or are likely to
engage in blocking or throttling that
cause harm to public safety in a manner
that would have been prohibited under
Title II.
40. Importantly, although proponents
of Title II regulation express concern
that a light-touch framework will lead to
practices such as throttling and
blocking, the record does not contain
even one recent example of such
conduct harmful to public safety that
would have been prohibited under Title
II. If unleashing ISPs from Title II
regulation truly endangered public
safety, then one would expect that this
threat would have materialized in the
more than two years that have passed
since the Restoring Internet Freedom
Order took effect. Instead, there has
been no evidence that the anticipated
harms have occurred, or that ISPs plan
to engage in blocking or throttling of
public safety traffic.
41. Likewise, we find unpersuasive
commenters’ concerns regarding the
effect of service plans that limit data or
speeds on members of the public who
rely on mass market broadband internet
access services to access public safety
information. We observe that broadband
service plans that limit data or speeds
were not prohibited even under the Title
II Order; as such, we find the return of
broadband internet access service to its
information services classification and
elimination of the conduct rules
irrelevant to the impact on the
permissibility of throttling under a data
plan when the data cap is exceeded. We
also observe that the record provides no
evidence of any actual incidences of
throttling or usage-based plan
allowances that have harmed
consumers’ mass market broadband
internet access service communications
in the public safety context.
42. We are similarly unpersuaded by
commenters’ concerns that public safety
communications may be harmed if ISPs
theoretically engaged in blocking or
throttling practices because
‘‘transmissions from public safety
officials’’ cannot ‘‘reliably be isolated
and identified as governmental
communications.’’ Because ISPs
understand that broadband internet
access service is used for public safety
communications, they have strong
incentives to act in accordance with
their commitments to abide by open
internet principles for all
communications, lest they risk
reputational damage they might suffer if
they were found to be hampering
communications that have public safety
implications. ISPs’ successful response
to the exponential network demands
during the COVID–19 pandemic
demonstrate their willingness and
ability to act under a light-touch
regulatory framework to protect and
facilitate public safety communications
during crises.
43. Taken together, these
considerations persuade us that
commenters’ concerns that the
regulatory approach of the Restoring
Internet Freedom Order would lead to
ISP blocking or throttling that causes
harm to public safety are speculative
and unlikely to occur. The dearth of
real-world examples of public safety
harms from blocking or throttling mass
market broadband internet access
service bolsters our views discussed
above that the transparency rule,
coupled with consumer protection and
antitrust laws—especially when further
coupled with the particular reputational
harms likely to arise were ISPs to block
or throttle traffic in a way that harmed
public safety—substantially reduce the
likelihood of such conduct occurring in
the first instance. And scenarios of
concern to commenters involving
service plans with data caps or speed
limits would not have been addressed
differently under the Title II regime in
any event. As a result, these speculative
concerns do not justify altering our
regulatory approach in the Restoring
Internet Freedom Order.
44. Speculative Harm—Paid
Prioritization. We are unpersuaded by
commenters who assert that the
Restoring Internet Freedom Order will
result in ISPs engaging in harmful paid
prioritization practices that will have an
adverse effect on public safety. The
Commission has long recognized and
permitted prioritization of public safety
communications. For decades, National
Security and Emergency Preparedness
(NSEP) personnel have had access to
priority services programs that leverage
access to commercial voice
communications infrastructure to
support national command, control, and
communications by providing
prioritized connectivity during national
emergencies. (‘‘NSEP personnel’’
generally refers to individuals who are
responsible for maintaining a state of
readiness or responding to and
managing any event or crisis (local,
national, or international), which causes
or could cause injury or harm to the
population, damage to or loss of
property, or degrades or threatens the
NSEP posture of the United States.) This
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prioritized connectivity may consist of
prioritized provisioning and restoration
of wired communications circuits or
prioritized communications for wireline
or wireless calls. The current priority
services programs were established
pursuant to Executive Order 12472,
issued in 1984, which called for
development of priority services
programs to facilitate communications
among top national leaders, policy
makers, military forces, disaster
response/public health officials, public
utility services, and first responders.
The Commission’s rules for the current
priority services programs date back to
the establishment of the
Telecommunications Service Priority
(TSP) System in 1988 and the creation
of the Priority Access Service (PAS),
more commonly referred to as Wireless
Priority Service (WPS), in 2000. As the
Commission explained when it
classified wireline broadband internet
access service as an information service,
for example, the ‘‘classification of
wireline broadband internet access
service as an information service, . . .
will not affect the Commission’s
existing rules implementing the
National Security Emergency
Preparedness (NSEP)
Telecommunications Service Priority
(TSP) System.’’ In any case, even
assuming arguendo that classification of
broadband internet access service as a
telecommunications service otherwise
might have affected the application of
these rules—such that obligations under
those rules newly would have applied
as a result of that classification—that
outcome did not actually result from the
Title II Order given the forbearance
granted there. We recently sought
comment on updating and revising our
rules governing the priority services
programs. The Commission recently
proposed to update its rules to expand
the scope of the priority services
programs to include data, video, and IP-
based voice services. As the variety and
volume of dedicated services for
prioritization of public safety traffic
demonstrate, prioritization of public
safety communications is critically
important to protecting life and
property, and nothing in our rules
currently prevents service providers
from prioritizing public safety
communications. Even the Title II Order
acknowledged that public safety could
benefit from traffic prioritization
without running afoul of the bright-line
rules in effect at the time, noting that
‘‘traffic prioritization, including
practices that serve a public safety
purpose, may be acceptable under our
rules as reasonable network
management.’’ Moreover, the
Commission’s proposals, should they be
adopted, could provide an additional
avenue to ensure that public safety
communications are appropriately
prioritized. As Free State Foundation
explains, ‘‘[s]haring commercial cores
and network traffic on an
undifferentiated basis with non-public
safety users can pose serious risk to the
integrity of public safety
communications in times of emergency
and other peak congestion situations.
When networks are congested or at risk
of becoming so, providing network
preferences for public safety-related
data traffic can prevent disruptions of
calls and other timely information being
sent to and from first responders and
other responsible agencies.’’
45. The Commission explained in the
Restoring Internet Freedom Order that
‘‘we expect that eliminating the ban on
paid prioritization will help spur
innovation and experimentation,
encourage network investment, and
better allocate the costs of
infrastructure, likely benefiting
consumers and competition.’’ We see no
basis for departing from this reasoning
in the public safety context. Concerns
expressed by commenters regarding
potential adverse effects to public safety
as a result of paid prioritization of non-
public safety communications appear to
be purely hypothetical at this point.
Indeed, even as the country faces an
unprecedented crisis, the harms
predicted by such commenters have not
materialized. We note that paid
prioritization arrangements are
ubiquitous throughout our economy. As
Free State Foundation explains, ‘‘[b]oth
market participants and economists
have recognized that such arrangements
can benefit customers who choose to
pay more for enhanced services while
making other customers no worse off. In
the broadband communications context,
paid priority arrangements between
broadband ISPs and edge providers can
benefit consumers by offering them
novel services supported by Quality-of-
Service guarantees. Edge service
providers, including new entrants,
potentially can improve their
competitiveness by obtaining fast and
extra-reliable broadband connections.
Prioritized access may be necessary for
some future internet-based innovative
services to function and attract
customers. And public safety agencies
already stand to benefit from these pro-
innovation and pro-investment effects of
paid prioritization arrangements and to
thereby better fulfill their duties to the
public.’’ Moreover, ISPs have made
clear, enforceable written commitments
to their customers not to engage in paid
prioritization. We also observe that our
theories in the Restoring Internet
Freedom Order for when paid
prioritization might be used
contemplated fairly narrow scenarios
that are unlikely to be the kind of
pervasive practices feared in the Title II
Order, and the record here does not
undercut that assessment. In particular,
we rejected assertions that allowing
paid prioritization would lead ISPs to
create artificial scarcity on their
networks by neglecting or downgrading
non-paid traffic or public safety
communications, creating a widespread
need for, and purchase of, paid
prioritization arrangements. Instead, we
anticipated paid prioritization being
used to address innovative, but
ultimately targeted, scenarios. In
addition, a number of ISPs question the
likelihood and prevalence of paid
prioritization arrangements actually
occurring in practice. Given those
considerations, neither scarcity of
network resources nor instances of paid
prioritization are likely to be anywhere
as pervasive as feared by proponents of
the Title II Order, particularly to the
point of adversely impacting public
safety communications. Further, as
AT&T points out, the Title II Order did
not ban all prioritization. That Order
expressly permitted direct
interconnection between ISPs and
content delivery networks, which act as
agents for paying content providers. The
Title II Order also made clear that
certain categories of service, such as
‘‘enterprise’’ services and those services
considered ‘‘non-BIAS services,’’ were
not subject to the Order’s restrictions.
Finally, under the Title II Order, the
Commission was authorized to grant
waivers of the paid priority ban where
the petitioner could demonstrate that
‘‘the practice would provide some
significant public interest benefit and
would not harm the open nature of the
internet.’’ We thus conclude that the
scenarios of potential concern for public
safety communications are much
narrower than commenters fear. As a
result, such concerns do not alter our
decision to retain the regulatory
framework of the Restoring Internet
Freedom Order.
46. We are unpersuaded by assertions
that permitting paid prioritization
practices that were impermissible under
the Title II Order will necessarily lead
to degradation of public safety
communications. Such commenters
‘‘mistakenly believe that QoS is a zero-
sum game, one in which it is impossible
to tailor the management of network
resources to the needs of specific
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organizations and applications without
impairing those not so managed.’’ As we
already concluded in the Restoring
Internet Freedom Order, ‘‘ ‘prioritizing
the packets for latency-sensitive
applications will not typically degrade
other applications sharing the same
infrastructure,’ such as email, software
updates, or cached video.’’ The record
here supports a similar conclusion for a
wider array of applications, as well. As
Rysavy Research explains, for example,
‘‘prioritizing one application over
another does not necessarily mean a
poorer experience for the lower-priority
applications. A video streaming
application can tolerate considerable
delay because the player buffers
information, so a user watching a video
will never notice some slightly-delayed
data.... Because different
applications have different needs, traffic
management is not a zero-sum game.’’
As such, we find that commenters’
concerns that the Restoring Internet
Freedom Order will lead to reduced
speed for customers that do not pay
extra for paid prioritization, resulting in
harms to public safety, are not well-
founded.
47. Speculative Harm—
Communications by Individuals with
Disabilities. We are not persuaded by
the claims of some commenters that the
regulatory approach adopted in the
Restoring Internet Freedom Order would
detrimentally effect the safety of life and
property for persons with disabilities.
We consider these arguments insofar as
they relate to the public safety remand
in Mozilla. To the extent that these
comments raise other issues related to
the effect of the Restoring Internet
Freedom Order’s regulatory approach on
persons with disabilities, we do not
reopen those issues from the Restoring
Internet Freedom Order here and thus
reject the arguments as outside the
scope of this proceeding. Consistent
with the Commission’s commitment to
communications services for
individuals with disabilities, we
conclude that the regulatory approach
established in the Restoring Internet
Freedom Order ultimately benefits
public safety communications by
individuals with disabilities in the same
manner as public safety
communications more generally—by
encouraging competition and
deployment. Further, as held in the
Restoring Internet Freedom Order, the
regulatory approach adopted there does
not significantly alter the regulatory
landscape of statutory protections for
communications by persons with
disabilities.
48. In substantial part, the concerns
raised about potential public safety
harm to persons with disabilities are the
same harms commenters raise with
respect to the public more generally
from potential blocking, throttling, or
paid prioritization—that users’
broadband internet access service-based
communications services needed for
public safety reasons might be hindered
by such ISP conduct and/or that users
might pay more for broadband internet
access services with capabilities that
avoid such harms. To the extent that
commenters simply raise the same
concerns that we have considered and
found unpersuasive in the case of the
public more generally, we likewise
reject them in the specific context of
persons with disabilities for the same
reasons.
49. Nor does the record persuade us
that there are likely public safety harms
in connection with services used
specifically by persons with disabilities
as a result of the regulatory approach
adopted in the Restoring Internet
Freedom Order. The California Public
Utilities Commission (California PUC)
contends that persons with disabilities
‘‘increasingly rely upon internet-based
video communications, both to
communicate directly (point-to-point)
with other persons who are deaf or hard
of hearing who use sign language, and
through video relay service,’’ and that
‘‘[t]hese applications often require
significant bandwidth, making their use
particularly sensitive to data caps and
network management practices.’’ As to
data caps, however, neither the
classification of broadband internet
access service as a telecommunications
service nor the Title II Order’s bright
line rules prevented such caps. Nor does
the record demonstrate that the
possibility of case-by-case review of
data caps—with its uncertain
outcomes—would meaningfully address
commenters’ hypothetical public safety
concerns that data caps would hinder
the functionality of services relied upon
by persons with disabilities for public
safety-related communications.
Commenters do not explain why they
think the application of that case-by-
case review would have addressed any
theoretical concerns about public safety
communications involving persons with
disabilities. We do recognize that the
use of broadband internet access service
to facilitate video communications by
persons with disabilities is distinct from
the specific types of applications ‘‘such
as email, software updates, or cached
video’’ that the Restoring Internet
Freedom Order identified as typically
unlikely to be degraded by prioritization
of latency-sensitive applications on the
same facilities. In addition to the video
communications services cited by the
California PUC, BBIC cites educational
tools for persons with disabilities:
‘‘Remote Real-time Captioning for
classes, E-Text through Bookshare.org
(Accessing and Downloading Accessible
Text Books) and the ability to access
and download software including
dictation software, screen readers, and
Text To Speech Softwares.’’ As a
threshold matter, the nexus to public
safety is unclear, particularly as it
relates to the use of broadband internet
access service by persons with
disabilities to download books and
software. We also find that downloading
books and software are likely akin to the
non-latency-sensitive uses of broadband
internet access service that the
Commission already held unlikely
typically to be affected by prioritization
of other traffic, and the record here does
not demonstrate otherwise. With respect
to ‘‘Remote Real-time Captioning for
classes,’’ we are not persuaded that any
public safety implications are materially
different for that use of broadband
internet access service than for others,
like video communications, discussed
in the text. To the extent that BBIC’s
concern is about blocking or throttling
of traffic, the Commission already
rejected the likelihood of that in the
Restoring Internet Freedom Order, and
we do not revisit that conclusion here.
Nor are we persuaded that there are
public safety implications for these
specific uses of broadband internet
access service cited by BBIC that cannot
adequately be addressed, if needed,
through the marketplace or other laws
given that their nature and context does
not appear to involve the need for
immediate communications to address
imminent threats to life or property. But
we do not find the likely effects on these
services meaningfully different than our
public safety analysis of the other video
communications applications
potentially used by the public more
generally as raised by commenters in
the record here. Indeed, there is no
evidence of such harm occurring since
the Restoring Internet Freedom Order
took effect. Consequently, we reject
public safety concerns about video
applications used by persons with
disabilities for the same reasons we
reject public safety concerns raised in
connection with other latency-sensitive
over-the-top services used by the public
more generally for public safety
purposes. Although the record does not
persuade us of likely public safety
harms to communications involving
persons with disabilities using video
communications over broadband
internet access service, should such
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evidence emerge we have authority to
act consistent with the regulatory
approach to broadband internet access
service adopted in the Restoring Internet
Freedom Order. As we held in the
Restoring Internet Freedom Order, the
Twenty-First Century Communications
and Video Accessibility Act of 2010
(CVAA) ‘‘directed the Commission to
enact regulations to prescribe, among
other things, that networks used to
provide’’ advanced communications
services (ACS), which includes
electronic messaging and interoperable
video conferencing services, ‘‘ ‘may not
impair or impede the accessibility of
information content when accessibility
has been incorporated into that content
for transmission through . . . networks
used to provide [ACS].’ ’’
50. We also are not persuaded by
commenters’ claims that ISP conduct
will lead to violations of laws
establishing protections for persons
with disabilities. As a threshold matter,
the nexus between those concerns and
public safety issues (or any other
remanded issue) is far from clear—and
to the extent commenters raise issues
lacking a nexus to the remanded issues,
we reject them as beyond the scope of
this proceeding. Independently, the
record does not demonstrate that the
regulatory approach adopted in the
Restoring Internet Freedom Order will
lead to the violation of the laws cited by
commenters. Commenters express vague
concerns about the potential violation of
section 225 of the Act, which calls for
the Commission to establish
Telecommunications Relay Services
(TRS) to provide certain persons with
disabilities communications services
that are functionally equivalent to voice
telephone service. The Commission’s
rules define the standards that providers
subject to section 225 must meet.
Although some TRS services are carried
via broadband internet access service,
commenters do not explain how the
regulatory approach in the Restoring
Internet Freedom Order will preclude
providers subject to section 225 from
complying with the Commission’s rules
implementing section 225. We also see
no basis in this record to conclude that
our policy discretion under section 225
of the Act to revise our TRS rules to
reflect evolving standards over time
would be materially affected under the
regulatory approach adopted in the
Restoring Internet Freedom Order.
51. Commenters’ arguments are also
flawed insofar as they focus not on
violations of laws by the ISPs
themselves but on the theory that ISPs’
conduct might make it harder for third
parties to comply with their obligations
under laws protecting individuals with
disabilities. For one, the record does not
demonstrate that such effects on third
party compliance are likely.
Independently, we are not persuaded
that such speculative concerns would
provide a sound basis upon which to
revisit the regulatory approach of the
Restoring Internet Freedom Order. Even
assuming arguendo that certain
regulation of ISPs could make it easier
for third parties to comply with those
third parties’ statutory obligations, the
net result would be to shift compliance
burdens away from the parties actually
subject to the statutory duties and onto
the ISPs. In effect, such regulation
would require ISPs to implicitly
subsidize the compliance costs of the
entities actually subject to the statutory
duties. We are not persuaded that would
be an appropriate basis for regulation.
52. Finally, we are unpersuaded by
BBIC’s assertion that provider conduct
no longer prohibited by the regulatory
approach in the Restoring Internet
Freedom Order might violate the
Americans with Disabilities Act’s (ADA)
‘‘prohibit[on on] interference with rights
granted under the ADA statute’’ or
‘‘raise state law tort issues such as
claims for prospective interference with
business advantage.’’ BBIC does not
explain why the theoretical potential for
a provider’s conduct to violate any such
requirements is, in itself, a reason to
return to the regulatory approach of the
Title II Order. Not only is the potential
for violations theoretical, but BBIC has
not sufficiently articulated a potential
legal violation. We thus reject BBIC’s
assertion that ‘‘[t]he FCC must explain
its analysis of whether the ADA
interference statute is violated by ISP
demands for payment for fast internet
access for additional payments or at risk
of slowdown of the data or vital services
including telemedicine for persons with
disabilities.’’ In other words, even
assuming arguendo that certain provider
conduct already is prohibited by a law
like the ADA’s prohibition on
interference, the record does not reveal
any public safety benefit from the
Commission separately and
independently regulating broadband
internet access service providers simply
to ensure they comply with obligations
they already otherwise are subject to by
law. Finally, the record does not reveal
any additional public safety concerns
that would arise from the speculative
claimed violation of these laws,
independent of the concerns about the
public safety effects of ISPs’ pricing and
network management practices that we
already considered and rejected above.
Indeed, one concern raised by the
California PUC appears even further
removed, insofar as it expresses concern
about the loss of ‘‘copper wires which
carry 911, closed captioning and TTY
services.’’ Neither the definition nor
classification of broadband internet
access service is tied to the physical
medium—copper vs. fiber—over which
it is provided, however, nor does the
California PUC give any indication of
how the Title II Order would have
addressed its concerns about the loss of
copper network facilities better (or at
all).
53. Speculative Harm—Critical
Infrastructure. We disagree that the
elimination of the internet conduct rules
will impact the safety and reliability of
‘‘critical infrastructure sectors,’’
including electric, gas, water, and
communications utilities, ‘‘which in
turn negatively impacts public safety,’’
as claimed by some commenters.
Commenters cite various federal laws or
statements of policy regarding critical
infrastructure in general or the use of
the internet and other communications
technologies as part of those sectors. In
some cases, the cited materials appear to
adopt principles or requirements
specific only to the implementation of
those statutes or involve
communications services generally in a
way that extends far beyond the scope
of this proceeding. Nor is our analysis
altered by references to ‘‘state laws
making the interference with
administration of government an offense
ranging from a civil to a criminal
misdemeanor—or felony.’’ The record is
not sufficiently developed on these legal
standards and their potential
application to any provider conduct that
theoretically could raise public safety
concerns for us to formally opine on
them here, and in any case BBIC does
not explain why the theoretical
potential for a provider’s conduct to
violate any such requirements is, in
itself, a reason to return to the
regulatory approach of the Title II Order.
The California PUC also cites its efforts
to ‘‘adopt[ ] a number of emergency
customer protection measures to
support residential and small business
customers of utilities affected by
disasters,’’ stating that these come in the
aftermath of a disaster and involve what
it asserts without elaboration are ‘‘vital
communications services.’’ The actual
nexus between the California PUC’s
customer protection measures and
protection of critical infrastructure or
public safety more generally is unclear
on this record. And the California PUC’s
concern in this regard appears to center
on arguments certain providers made
objecting to its regulations, among many
other grounds, on the basis of the
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preemption portion of the Restoring
Internet Freedom Order. These
arguments appear to have been made
prior to the Mozilla court vacating that
portion of the Restoring Internet
Freedom Order—a fact the California
PUC does not address—and otherwise
remain unresolved. We thus are not
persuaded that these arguments
demonstrate a public safety harm arising
from the Restoring Internet Freedom
Order’s regulatory approach.
Commenters’ concerns about critical
infrastructure-related risks are premised
on the same ISP conduct that underlie
commenters’ public safety concerns
more generally—blocking, throttling,
and paid prioritization—which we find
unlikely to occur for the reasons already
discussed above. As we found, the
effects of ISP conduct involving paid
prioritization, should they occur, are
unlikely to detrimentally affect
applications used for public safety
purposes generally, and the record does
not justify a different conclusion in the
case of the applications cited by
commenters in connection with critical
infrastructure. Late in the proceeding
BBIC filed an ex parte attaching in full
a number of law journal articles and a
brief from the Mozilla litigation from
2018 and 2019 without directing the
Commission’s attention to particular
elements or aspects of those attachments
beyond the specific quotes or arguments
from those materials that it referenced
in earlier filings, instead stating simply
that ‘‘the attached material [is]
responsive to issues raised in these
proceedings.’’ Reviewing that filing in a
manner consistent with the
circumstances, each of the attachments
appear, at least in part, to discuss public
safety concerns in general, including
critical infrastructure issues in
particular. To the extent that the
attachments appear to bear on the
remanded public safety issue, these
attachments do not appear to raise facts,
arguments, or concerns that differ in
material ways from those we otherwise
address and find unpersuasive in this
section. For example, we do not readily
identify in these attachments—and
BBIC’s accompanying ex parte letter
does not highlight—circumstances
where ISPs are likely to behave
differently than otherwise reflected in
our public safety analysis; nor
applications or services with technical
characteristics materially different than
those otherwise considered in our
analysis; nor legal responsibilities
imposed on the Commission that we
have not met here; nor other reasons for
the Commission to reject its regulatory
approach from the Restoring Internet
Freedom Order that are materially
different from the arguments the
Commission otherwise finds
unpersuasive in its analysis here. Nor is
there evidence of such harm occurring
since the Restoring Internet Freedom
Order took effect.
54. Although commenters discuss
various applications that arguably have
at least some nexus to critical
infrastructure protection, the record
does not reveal technical details
regarding the operation of any of those
applications that demonstrates that they
would be significantly affected by ISP
network management, let alone in a way
that would have been prohibited by the
rules adopted in the Title II Order. Nor
is it even clear that all of the cited
applications rely on mass market
broadband internet access service,
rather than enterprise services,
specialized services, or other services
that fell outside the scope of the Open
Internet Order and Title II Order. For
example, it is not clear from the record
that ‘‘ ‘Smart Grid communication to the
internet-enabled backbone,’ ’’
necessarily relies on mass market
broadband internet access service. Nor
is it clear whether the operation of
certain devices that facilitate the
applications cited by commenters, such
as ‘‘internet-connected thermostats,
solar panels, and energy storage units,’’
would rely on mass market broadband
internet access service or instead on
some other ‘‘non-BIAS data services’’
and as such, by default would not have
been regulated by the Title II Order in
any event. Commenters’ various high-
level claims about the general
importance of communications to
critical infrastructure also appear to
extend beyond mass market broadband
internet access services. Indeed, it is the
increasingly robust broadband made
available since the Restoring Internet
Freedom Order that has made possible
the ‘‘fast, instantaneous
communications’’ needed for many of
the beneficial critical infrastructure-
related programs to be effective.
55. Limited Scope of Any
Hypothetical Harm. We emphatically
agree with the Mozilla court that
‘‘whenever public safety is involved,
lives are at stake.’’ Our analysis above
demonstrates that harms to public
safety, and thus American lives, have
not arisen and are unlikely to arise as a
result of the Restoring Internet Freedom
Order. To be thorough, we must further
observe that if some harm were
nonetheless to arise, its impact would
necessarily be limited by the important
but bounded role that broadband
internet access service plays in the
broader public safety communications
marketplace. Public safety entities often
rely on enterprise-level broadband data
services for communications between
public safety officials, which were never
subject to the Title II Order. And while
mass market broadband services are a
critical element of public safety
communications for members of the
public, such services are not the only
means of disseminating, accessing, and
conveying important public health and
safety communications, as consumers
rely on voice services (most notably 911
capabilities), the emergency alert
system, and wireless emergency alerts
for accessing important public safety
information as well.
5. The Public Safety Benefits and
Overall Benefits of the Restoring
Internet Freedom Order Outweigh Any
Unlikely Harms to Public Safety
56. Our analysis leads us to conclude
that the likely benefits of the Restoring
Internet Freedom Order for public safety
clearly outweigh any harms. Getting
broadband to more Americans sooner
and at lower prices can and will likely
save lives. This public safety benefit
extends beyond broadband internet
access service to all commingled
services that rely on the same facilities,
and even to other services that ISPs may
invest in with money that they would
otherwise have spent on regulatory
compliance. Weighed against our
conclusion that harms to public safety
have not arisen and are unlikely to arise
as a result of the Restoring Internet
Freedom Order, it is clear that the
benefits of the underlying order
outweigh the costs as to public safety.
Moreover, we must take into account
that the likely benefits of the Restoring
Internet Freedom Order extend far
beyond public safety, and into every
realm of American life touched by the
internet. As we explained in the
Restoring Internet Freedom Order,
reinstating the information service
classification for broadband internet
access service ‘‘is more likely to
encourage broadband investment and
innovation, further our goal of making
broadband available to all Americans
and benefitting the entire internet
ecosystem. ISP investment does not
simply take the form of greater
deployment, but can also be directed
toward new and more advanced services
for consumers. Enabling ISPs to freely
experiment with services and business
arrangements that can best serve their
customers, without excessive regulatory
and compliance burdens, ‘‘is an
important factor in connecting
underserved and hard-to-reach
populations,’’ and we agree with the
Chamber of Commerce that the positive
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effects of the Restoring Internet Freedom
Order likely will help ‘‘enable the
deployment of rural broadband and 5G
technologies that benefit the entire
economy and will help close the digital
divide.’’ We thus conclude that the
overall benefits of the Restoring Internet
Freedom Order (including to public
safety) clearly outweigh any harms to
public safety.
B. Pole Attachments
57. The Mozilla court directed us to
‘‘grapple with the lapse in legal
safeguards’’ that results from
reclassification eliminating section 224
pole attachment rights of ISPs that lack
a commingled telecommunications
service or cable television system (i.e.,
broadband-only providers). For the
reasons below, we find that the benefits
of returning to the light-touch
information service classification
adopted in the Restoring Internet
Freedom Order far outweigh any limited
potential negative effects resulting from
the loss of section 224 rights for
broadband-only ISPs.
1. Section 224 Authority
58. The Commission has broad
authority under section 224 of the Act
to regulate attachments to utility-
owned-and-controlled poles, ducts,
conduits, and rights-of-way. Section 224
defines pole attachments as ‘‘any
attachment by a cable television system
or provider of telecommunications
service to a pole, duct conduit, or right-
of-way owned or controlled by a
utility.’’ It authorizes us to prescribe
rules to ensure that the rates, terms, and
conditions of pole attachments are just
and reasonable; require utilities to
provide nondiscriminatory access to
their poles, ducts, conduits, and rights-
of-way to telecommunications carriers
and cable television systems
(collectively, attachers); provides
procedures for resolving pole
attachment complaints; governs pole
attachment rates for attachers; and
allocates make-ready costs among
attachers and utilities. The Act defines
a utility as a ‘‘local exchange carrier or
an electric, gas, water, steam, or other
public utility, . . . who owns or
controls poles, ducts, conduits, or
rights-of-way used, in whole or in part,
for any wire communications.’’
However, for purposes of pole
attachments, a utility does not include
any railroad, any cooperatively-
organized entity, or any entity owned by
a federal or state government. Section
224 excludes incumbent local exchange
carriers from the meaning of the term
‘‘telecommunications carrier,’’ therefore
these entities do not have a mandatory
access right under section 224(f)(1). The
Commission has held that when
incumbent local exchange carriers
obtain access to poles, section 224
governs the rates, terms, and conditions
of those attachments. The Act allows
utilities that provide electric service to
deny access to their poles, ducts,
conduits, or rights-of-way because of
‘‘insufficient capacity and for reasons of
safety, reliability and generally
applicable engineering purposes.’’
59. The Act nonetheless only gives
the Commission limited authority. It
exempts from our jurisdiction those
pole attachments in states that have
elected to regulate pole attachments
themselves, referred to as reverse
preemption states. Twenty-four states
and the District of Columbia have
elected this reverse preemption, leaving
our rules to govern pole attachments in
26 states and the U.S. Territories.
Section 224 also does not cover poles
owned by municipalities, electric
cooperatives, railroads, or the Federal or
state governments.
2. The Benefits of Reclassification
Outweigh Any Potential Drawbacks for
Broadband-Only ISPs
60. Based on the record, we find that
the benefits of returning broadband
internet access service to its historical
information service classification
outweigh any potential adverse effects
resulting from the loss of pole
attachment rights under section 224 for
broadband-only ISPs. First, we find that
any drawbacks of reclassification are
limited because in the areas where
federal pole attachment regulation
applies, almost all ISPs’ pole
attachments remain subject to section
224, as they commingle cable or
telecommunications services with their
broadband services. Second, we
conclude that the benefits of
reclassification for broadband-only
providers outweigh any limited pole
attachment-related drawbacks they
face—and the overall benefits of
reclassification outweigh the drawbacks
of broadband-only ISPs’ attachments no
longer being subject to section 224.
61. Drawbacks of Reclassification Are
Limited. Section 224 applies to
attachments of cable television systems
and providers of telecommunications
services, but not to providers of only
information services. As the
Commission has previously clarified,
however, ‘‘where the same
infrastructure would provide ‘both
telecommunications and wireless
broadband internet access service,’ the
provisions of section 224 governing pole
attachments would continue to apply to
such infrastructure used to provide both
types of service.’’ This determination is
consistent with the U.S. Supreme
Court’s decision in NCTA v. Gulf Power
Co., in which the Court held that the
protections afforded by section 224 to
cable attachments remain in place when
a service provider uses the same
facilities to offer broadband internet
access service to its subscribers. Thus,
in non-reverse preemption states, ‘‘the
protections afforded by section 224 to
cable television systems and providers
of telecommunications service remain
in place when a service provider uses
the same facilities to offer broadband
internet access service to its
subscribers.’’ Only the few ISPs that do
not offer cable or telecommunications
services over the same network would
not be able to avail themselves of the
protections Congress established in
section 224 and the Commission’s
implementing rules.
62. We find that the vast majority of
subscribers are served by ISPs that
provide either cable or
telecommunications services over their
networks and therefore remain able to
take advantage of the rights guaranteed
by section 224 after the reclassification
of broadband internet access service as
an information service. Public
Knowledge et al. claim that AT&T may
soon cease to provide a
telecommunications service or a cable
television service, and as a result, ‘‘the
entire AT&T network will no longer be
eligible for pole attachment rates’’ and
AT&T may no longer ‘‘qualify as a LEC.’’
Speculation regarding a single provider
is insufficient to justify changing our
course. Further, in the attachment on
which Public Knowledge et al. rely,
AT&T merely sets forth a plan to
grandfather DSL (a legacy information
service). The document specifically
states that customers that wish to retain
plain old telephone service (a
telecommunications service) may do so,
and Public Knowledge et al. do not
provide any evidence that AT&T plans
to discontinue any telecommunications
services offered over any of its facilities.
Carriers must obtain Commission
approval prior to discontinuing
telecommunications services, and
interested parties would have an
opportunity to object to any proposed
continuance. The record
overwhelmingly confirms our
conclusion. According to ACA
Connects, all of its members
‘‘ ‘commingle’ broadband with either or
both a cable or telecommunications
service over the same network.’’
Likewise, the Edison Electric Institute’s
members ‘‘report that at this time very
few ISPs seek to attach to electric
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company poles to provide broadband-
only service.’’ USTelecom cites a
November 2019 report stating that at
least 96% of the broadband market was
served by companies that either
provided telecommunications services
or operated a cable system.’’ Further, we
agree with ACA Connects that ISPs will
continue to offer commingled services
for the foreseeable future because ‘‘ISPs
have an incentive to offer as many
services as possible over their networks
to achieve efficiencies and maximize
revenues, and thus very few providers
only offer over their networks
standalone broadband service.’’ In fact,
NCTA argues that a reason broadband-
only providers are particularly rare is
‘‘precisely because triple-play services
are both popular with subscribers and
beneficial to providers.’’ Notably,
multiple commenters agree that the
majority of existing ISPs offer
commingled services. Further, ISPs may
gain the status of telecommunications
providers, and thus become eligible for
section 224 pole attachment rights. Our
experience with the substantial
participation in the Connect America
Fund (CAF) Phase II universal service
support auction and, more recently, our
Rural Digital Opportunity Fund Phase I
auction demonstrates that providers are
willing or able to become
telecommunications carriers when they
find it beneficial. 220 applicants
qualified to bid in the CAF Phase II
auction, and as of September 2020, 192
of 194 winning bidders had been
designated as ETCs in 45 states and
been authorized to begin receiving
support. The Rural Digital Opportunity
Fund auction imposed similar ETC
designation requirements on applicants.
Bidding in the Rural Digital
Opportunity Fund Phase I auction is
scheduled to begin on October 29, 2020,
and the Commission received 505
applications to participate. As another
option, a broadband-only provider may
also partner with an existing cable or
telecommunications provider to invoke
section 224 protections.
63. Although we agree that timely
‘‘access to utility poles is a competitive
bottleneck,’’ based on the record, we are
convinced that reclassification does not
significantly limit new entrants to the
marketplace or the effectiveness of the
Commission’s recent one-touch-make-
ready rules. Broadband-only providers
now have the regulatory flexibility to
enter into innovative and solution-
oriented pole attachment agreements
with pole owners. Indeed, Southern
Company notes that its operating
companies—Georgia Power, Alabama
Power, and Mississippi Power—
‘‘routinely enter into pole license
agreements with entities that are neither
cable television systems nor
telecommunications carriers’’ and ‘‘[t]he
negotiation of these pole license
agreements is often more efficient than
negotiation of pole license agreements
with cable television systems or
telecommunications carriers because the
prospective licensee appears to be more
interested in a deal that works than they
are interested in ensuring that any
perceived regulatory rights are reflected
in the agreement.’’ Further, since the
adoption of the Restoring Internet
Freedom Order, there is only limited
evidence in the record that a small
number of broadband-only providers
have experienced increased costs to
obtain access to poles, and there is also
evidence that such costs or other
barriers have not increased. For
instance, Southern Company explains
that ‘‘its operating companies have not
increased pole attachment rates or
prohibited a broadband provider from
attaching equipment following the
Order’’ and that it must ‘‘answer to a
state public service commission when it
comes to the lease of property
capitalized within the rate base.’’ Only
WISPA provides some isolated and
anecdotal examples of higher pole
attachment rates, but fails to
demonstrate the existence of a
widespread problem. Indeed, WISPA
emphasizes that these few incidents do
not outweigh the overall positive impact
of Title I reclassification for its
members. Although some commenters
contend that the reclassification has
adversely impacted broadband-only
providers, they largely fail to provide
data or specific examples that connect
the Restoring Internet Freedom Order to
a rise in pole attachment rates or denials
of pole access. For instance, while
Google Fiber states that, prior to the
Title II Order, negotiations over pole
attachment agreements with pole
owners ‘‘were difficult and time
consuming,’’ and it ‘‘had to be willing
to pay higher rent than cable operators
and telecommunications providers,’’ as
commenters note, Google does not
provide examples of similar negotiation
and rate difficulties since the adoption
of the Restoring Internet Freedom Order.
Notably, Google merely speculates that
it ‘‘may find itself with no right to use
[‘‘one-touch make-ready’’] OTMR
procedures in a given market.’’ Google
Fiber advocacy at the time suggests that
it anticipated accruing benefits from our
adoption of OTMR. Google Fiber
strongly supported OTMR adoption in
the 2018 Wireline Infrastructure (83 FR
46812, Sept. 14, 2018) proceeding,
despite the fact this proceeding
occurred after we reclassified broadband
as an information service in the
Restoring Internet Freedom Order.
Google Fiber also had a representative
on the Broadband Deployment Advisory
Committee who voted in favor of its
report recommending that the
Commission adopt OTMR. We find this
speculation unconvincing and, to the
contrary, agree with ACA Connects
members that over time, new and
existing attachers, as well as pole
owners, will ‘‘find it to their advantage
to use [the OTMR] process, making it an
industry standard—regardless of
whether an attacher has section 224
rights.’’
64. Further, despite its concerns that
pole owners will use the reclassification
of broadband internet access service as
an information service to delay and
even block new deployments by
broadband-only providers, Google
acknowledges that before broadband
internet access service was classified as
a telecommunications service, it was
able to enter into such agreements with
utilities. Southern Company confirms
that in February 2014, ‘‘Google Fiber
first approached Georgia Power about a
pole license agreement’’ and ‘‘[b]y
December 15, 2014, the parties had fully
executed their agreement.’’ Notably,
although Google Fiber repeatedly
emphasizes the unfairness of its
inability to take advantage of pole
access rights for cable operators under
section 224, NCTA contends that Google
Fiber could, in fact, be classified as a
Title VI cable service due to its video
offering, but has taken the position that
its video offering is not a cable service
in order to avoid regulatory burdens
under Title VI.
65. The limited impact of the loss of
section 224 rights for broadband-only
providers is further diminished by the
fact that states have the ability to
reverse-preempt the Commission’s rules
under section 224(c)—and a substantial
minority have in fact done so. As
multiple commenters note, our Title I
classification does not impact the 24
states and the District of Columbia that
have chosen to reverse-preempt our
rules. Therefore, if a state prefers to
adopt a different regulatory approach,
that state has the opportunity to exercise
its authority to expand the reach of
government oversight of pole
attachments, and several states that have
reverse preempted currently regulate
pole attachments by information service
providers. The Restoring Internet
Freedom Order does not disturb the
authority of states that have reverse
preempted to assert such jurisdiction or
prevent states that have not reverse
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preempted from doing so in order to
assert such jurisdiction. The California
Public Utilities Commission expresses
concern that ‘‘ISPs may attempt to
invoke the information services
classification as a shield against a
State’s jurisdiction to regulate pole
attachment safety.’’ It claims that
‘‘overloaded poles and/or insufficiently
maintained attachments’’ have
presented public safety issues. However,
California currently regulates pole
attachments at the state level so it is free
to assert its authority over pole
attachments by broadband-only
providers under California law as it
wishes without federal restriction under
the Act.
66. We note further that section 224
has several gaps, such that the exclusion
of broadband-only providers is not
aberrant. Section 224 applies to specific
categories of poles and, as noted above,
only in applicable states. As noted
above, poles owned by municipalities,
electric cooperatives, railroads, and
Federal and state governments are not
covered under section 224, and so the
adoption of the Restoring Internet
Freedom Order does not affect the
access of any ISP to such poles.
67. The Benefits of Reclassification
Outweigh Any Pole Attachment-Related
Drawbacks. Ultimately, the record
supports our determination that the
reclassification of broadband internet
access service as an information service
has facilitated rather than inhibited new
technologies and business models,
despite the rare potential for pole
attachment access challenges. To this
end, given the overall benefits of Title
I reclassification, we find that it would
be counterproductive to upend our
light-touch regulatory framework for
broadband internet access service
because of speculative concerns that at
most would impact a small minority of
ISPs and consumers.
68. First, there is no question that the
overall benefits of reclassification
outweigh the limited drawbacks that
stem from broadband-only ISPs losing
their section 224 pole attachment rights.
As we have discussed, numerous
commenters—including broadband-only
ISPs—assert that Title I reclassification
has promoted robust infrastructure
investment and deployment in
broadband networks and facilities.
Indeed, the Mozilla Court upheld our
cost-benefit analysis in the Restoring
Internet Freedom Order, stating that we
made a ‘‘reasonable case that [our]
‘light-touch’ approach is more
conducive to innovation and openness
than the Title II Order.’’
69. Second, the regulatory certainty
provided by the Commission’s actions
in the Restoring Internet Freedom Order
create incentives that likely help foster
substantial investment in new
broadband infrastructure, including
poles, and increased broadband
deployment. For instance, ‘‘[a] WISPA
member in Minnesota has invested $1.5
million dollars to expand its network by
adding 12 new towers since January
2018’’ and ‘‘[t]his expansion has
allowed the company to fully cover two
additional counties in Minnesota.’’ We
agree with the majority of commenters
that these benefits outweigh the loss of
section 224 protections for the very
limited number of broadband-only
providers that do not offer a cable or
telecommunications service over the
same network as they provide
broadband internet access service.
Indeed, despite a membership including
broadband-only providers, WISPA
emphatically confirms our position that
‘‘[t]here is no doubt that the Restoring
Internet Freedom Order’s abandonment
of burdensome Title II regulations for
broadband internet access service
providers is of paramount importance in
promoting deployment of new service
and enhancing competitive offerings. If
it were actually a choice between the
world of Title II regulation and the
lighter touch of Title I regulation, with
no pole attachment protections for
broadband-only providers, WISPA
would choose the latter paradigm.’’
70. We decline at this time to address
requests in the record to reinterpret
section 224 or rely on other sources of
authority to extend the availability of
access rights under section 224 to
broadband-only providers. A number of
commenters propose sources of
Commission authority to extend section
224 to cover broadband-only ISPs. For
instance, WISPA proposes to directly
apply section 224 or rely on ancillary
authority. Specifically, WISPA contends
that the plain text and objective of
section 224, as well as provisions such
as sections 157 and 257 of the Act, and
section 706 of the 1996 Act, is ‘‘to level
the playing field, promote competition,
expand the public’s access to advanced
services or ensure that customers have
access to service at ‘just and reasonable
rates.’ ’’ According to WISPA, we could
also exercise our ancillary jurisdiction
under section 154 or rely on section 706
as our statutory authority to extend pole
access and rate rights to broadband-only
providers. Other commenters offer
general support for us to extend section
224 to cover broadband-only providers.
Alternatively, Southern Company
proposes ‘‘to unwind many of the
incumbent-friendly pole attachment
regulations adopted by the Commission
during the past decade, in order to allow
broadband-only providers to compete
on a more level regulatory playing
field.’’ For the purposes of this Order on
Remand, we find that even assuming we
lack authority to extend section 224 to
cover broadband-only providers, the
overall benefits of reclassification
outweigh the limited drawbacks. Parties
arguing in favor of extending pole
attachment rights to broadband-only
ISPs are free to file a petition for
rulemaking or petition for declaratory
ruling, which we then may consider
with the benefit of a full and focused
record on the topic.
C. Lifeline Broadband Services
71. The D.C. Circuit in Mozilla
directed us to consider on remand the
statutory basis for broadband internet
access service’s inclusion in the Lifeline
program. After such consideration, we
further explain our finding that we have
legal authority under section 254(e) of
the Act to distribute Lifeline support for
broadband service provided by ETCs.
That authority is undergirded by the
clear intent of Congress that universal
service efforts should increase access to
advanced services, and the record in
this proceeding offers broad support for
our conclusion.
1. The History of Funding Broadband
Services Through the Universal Service
Fund
72. In the 2011 USF/ICC
Transformation Order (76 FR 73830,
Nov. 29, 2011), the Commission adopted
comprehensive reforms to modernize
the Universal Service Fund (USF or
Fund) to ‘‘implement Congress’s goal of
promoting ubiquitous deployment of,
and consumer access to, both traditional
voice calling capabilities and modern
broadband services over fixed and
mobile networks.’’ As part of this
modernization effort, the Commission
leveraged the funding disbursed through
the Fund’s high-cost mechanism to
encourage the deployment of
broadband-capable networks, even
though broadband internet access
service was at the time classified as an
information service. The Commission
stated that by ‘‘referring to ‘facilities’
and ‘services’ as distinct items [in
section 254(e)] for which federal
universal service funds may be used
. . . Congress granted the Commission
the flexibility not only to designate the
types of telecommunications service for
which support would be provided but
also to encourage the deployment of the
types of facilities that will best achieve
the principles set forth in section 254(b)
and any other universal service
principle that the Commission may
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adopt under section 254(b)(7).’’ The
Commission further concluded that
section 254 allowed it to condition the
receipt of universal service support on
ETCs offering broadband capabilities to
their customers. The Tenth Circuit
affirmed this approach as a reasonable
interpretation of the statute and upheld
the Commission’s authority to structure
universal service support to ensure that
the universal service policies set out in
section 254(b) of the Act are achieved.
73. The Commission first funded
broadband internet access service
offerings in the Lifeline program when
it launched the Lifeline Broadband Pilot
Program as part of the reforms adopted
in the 2012 Lifeline Order (77 FR 12952,
March 2, 2012). In doing so, the
Commission relied upon the same
theory of legal authority it applied to the
high-cost mechanism in the USF/ICC
Transformation Order. At the time that
the Commission initiated the Lifeline
Broadband Pilot Program, broadband
internet access service was classified as
an information service under Title I.
After a successful pilot program, in the
2016 Lifeline Order (81 FR 33026, May
24, 2016), the Commission expanded
the Lifeline program to include support
for broadband internet access service
funding. However, since broadband
internet access service had been
reclassified as a telecommunications
service subject to Title II regulatory
requirements before the 2016 Lifeline
Order, the Commission relied on that
reclassification when expanding the
Lifeline program to include support for
broadband but did not disavow the legal
authority theory used in the USF/ICC
Transformation Order or the 2012
Lifeline Order.
74. In the 2017 Lifeline Notice of
Proposed Rulemaking (NPRM) (83 FR
2104, Jan. 16, 2018), to ensure that the
Commission was administering the
Lifeline program on sound legal footing,
the Commission proposed to apply the
same theory of legal authority it used in
the USF/ICC Transformation Order and
the 2012 Lifeline Order to continue
funding broadband internet access
service in the Lifeline program. In that
NPRM, the Commission asserted that it
had the proper 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.’’ The Commission concluded
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.’’
Indeed, the Commission further
concluded that it had a ‘‘ ‘mandatory
duty’ to adopt universal service policies
that advance the principles outlined in
section 254(b) and we have the
authority to ‘create some inducement’ to
ensure that those principles are
achieved.’’ In the same NPRM, the
Commission sought comment on
eliminating the Lifeline Broadband
Provider category of ETC, a broadband-
only ETC designation that had been
newly created in the 2016 Lifeline Order
when broadband internet access service
had been classified as a Title II service.
75. Finally, in the 2019 Lifeline Order
(84 FR 71308, Dec. 27, 2019), the
Commission re-evaluated the legal
structure of the Lifeline Broadband
Provider ETC category. With no
obligation to offer the supported voice
service under section 254(c), the
Commission found that the Lifeline
Broadband Provider category was in
conflict with section 214. As such, the
Commission eliminated this ETC
category. Free Press argues that the
Commission’s decision to reclassify
broadband internet access service as an
information service ‘‘locks [ ] out’’
broadband-only providers from the
Lifeline program. Thus, all ETCs
currently are required to be common
carriers and to offer voice service. The
Commission has held that the section
214 requirement that an ETC offer the
supported services through ‘‘its own
facilities or a combination of its own
facilities and resale of another carrier’s
service’’ would be satisfied when
service is provided by any affiliate
within the holding company structure.
2. The Commission Has Authority To
Support Broadband Service in the
Lifeline Program
76. Upon further review and having
considered the record in both the
Restoring Internet Freedom proceeding
and in response to the 2017 Lifeline
NPRM, we determine that we have
authority under section 254 of the Act
to provide support for broadband
internet access service from the Lifeline
program in addition to a qualifying
voice service. First, we elaborate on our
application of the theory of legal
authority adopted in the USF/ICC
Transformation Order to the Lifeline
program. Second, we address how this
authority is not dependent on the
regulatory classification of broadband
internet access service and is consistent
with the section 214(e) requirement that
ETCs be common carriers. Third, we
make necessary adjustments to the
Commission’s rules to implement this
approach. Finally, we address how this
legal authority will still allow the
Lifeline program to reimburse
broadband-only service offerings.
77. We conclude, as the Commission
found in the context of the high-cost
mechanism, that we have authority
under section 254 to continue funding
broadband internet access service
offerings in the Lifeline program and
that this position is strongly supported
by the text of the Communications Act
and the record. Under section 254(e),
carriers receiving support ‘‘shall use
that support only for the provision,
maintenance, and upgrading of facilities
and services for which the support is
intended.’’ Under this statutory
provision, the Commission has
flexibility to design its support
mechanisms to fund both the service
itself—here, voice telephony—and the
underlying facilities used to offer the
supported service—here, broadband-
capable networks. Modern
communications networks are multi-use
networks used to provide an array of
services. Providing Lifeline support
when ETCs provide broadband internet
access service thus has the effect of
supporting the underlying broadband-
capable network also used to offer voice
telephony. As in the high-cost program,
the Commission’s support mechanisms
can and should incentivize ETCs to offer
access to the services that advance the
principles of section 254(b). The
Leadership Conference Ex Parte also
raises a number of suggestions for
further Commission action to respond to
the COVID–19 pandemic, which we do
not address here as they are beyond the
scope of this remand proceeding. Other
commenters argue that the Commission
lacks authority to fund broadband
internet access services through the
Lifeline program under section 254. We
believe this is incorrect, and we address
those arguments below. All ETCs
participating in the Lifeline program are
and will remain common carriers and
must offer voice services by themselves
or through an affiliate, but the
Commission can also continue to
support broadband internet access
service in the Lifeline program, and the
universal service support will flow to
the facilities of ETCs that are by
definition common carrier providers of
voice services.
78. Section 254(e) states that ETCs
‘‘shall be eligible to receive specific
Federal universal service support’’ and
that an ETC receiving universal service
support ‘‘shall use that support only for
the provision, maintenance, and
upgrading of facilities and services for
which the support is intended.’’ Section
254(c) does not impose an impediment
to this conclusion. While section
254(c)(1) refers to universal service as
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‘‘an evolving level of
telecommunications services,’’ this does
not prohibit the Commission from using
the program to more broadly advance
the principles set forth in section 254(b)
and indicates that Congress disfavored a
static approach focused on legacy
technologies. Additionally, section
254(b) establishes the principles on
which the Commission shall base its
policies for the preservation and
advancement of universal service. Such
principles include ensuring that quality
services are available at ‘‘affordable
rates’’ and that ‘‘access to advanced
telecommunications and information
services should be provided in all
regions of the Nation.’’
79. As the Commission concluded in
the USF/ICC Transformation Order, by
requiring in section 254(e) that ETCs use
high-cost support for both facilities and
services, Congress granted the
Commission flexibility to not only
designate the types of services for which
support would be provided, but also to
encourage the deployment of the types
of facilities that will best achieve the
principles set forth in section 254(b). In
addition, the Commission has a
‘‘mandatory duty’’ to implement
universal service policies that advance
the principles outlined in section
254(b), and to accomplish that duty we
have the authority to ‘‘create some
inducement’’ to ensure that those
principles are achieved. Our authority
under section 254 therefore permits us
to direct universal service support
through the Lifeline program to both
voice services and broadband internet
access service in accordance with our
long-standing principle ‘‘that universal
service support should be directed
where possible to networks that provide
advanced services, as well as voice
services.’’ In upholding the
Commission’s reliance on this approach
when it instituted the modernized high-
cost programs, the Tenth Circuit
approvingly noted that by ‘‘interpreting
the second sentence of § 254(e) as an
implicit grant of authority that allows it
to decide how USF funds shall be used
by recipients, the FCC also acts in a
manner consistent with the directive in
§ 254(b) and allows itself to make
funding directives that are consistent
with the principles outlined in
§ 254(b)(1) through (7).’’ The National
Lifeline Association (NaLA) and AT&T
propose that the Commission may be
able to rely on its ancillary authority
under section 4(i) of the Act to continue
to support broadband internet access
service in the Lifeline program. The
National Consumer Law Center (NCLC)
and the United Church of Christ (UCC),
as well as AT&T, pointed to section
254(j) as another potential source of
authority for supporting broadband
internet access service in the Lifeline
program. Additionally, the Lifeline
Connects Coalition urged us to explore
using Title I’s general jurisdictional
grant as an option to support broadband
internet access service in the Lifeline
program or ancillary authority options
for the principles outlined in section
254(b). Because we find that section
254(e) provides a clear source of
authority for the Commission to support
ETCs providing broadband internet
access service in the Lifeline program,
we do not find it necessary to rely on
the other sources of legal authority
proposed in the record.
80. The D.C. Circuit in Mozilla, in
remanding this issue back to the
Commission, stated that we ‘‘fail[ ] to
explain’’ how our authority under
section 254(e) could extend to
broadband internet access service ‘‘now
that broadband is no longer considered
to be a common carrier[service].’’ We
clarify that while broadband internet
access service itself is not a common
carrier service, many broadband
providers are ETCs—and thus, by
definition, are common carriers. Section
254(e) permits us to direct universal
service support to both the voice service
and broadband internet access service
provided by such ETCs. This support
flows regardless of the type of service
provided, as long as it goes to support
the facilities of a designated ETC. Thus,
it is the ‘‘common-carrier status’’ of the
provider, not the service, that governs
whether the provider is eligible to
receive Lifeline support for services
provided over its network. If a service
provider is not a common carrier and
thus cannot become an ETC, the Lifeline
program cannot support its provision of
broadband internet access service. For
this reason we also reject NARUC’s
contention that the Commission’s
continued use of ‘‘voice telephony
service’’ to define the supported service
creates a risk that a provider that is not
a common carrier will obtain
designation as an ETC. There is no basis
for NARUC’s claim that the 10th
Circuit’s decision in In re FCC 11–161
rejected the Commission’s use of voice
telephony service as the supported
service, and nothing in our Order today
changes that result. As the court noted
in that decision, only common carriers
are eligible to obtain designation as an
ETC and the court ‘‘agree[d] with the
FCC that the petitioners’ argument ‘will
not be ripe for judicial review unless
and until a state commission (or the
FCC) designates . . . an entity’ that is
not a telecommunications carrier as ‘an
‘eligible telecommunications carrier’ ’;
under § 214(e).’’ Since NARUC provides
no evidence that a non-common carrier
has been designated by the FCC or a
state commission, much less as the
result of the Restoring Internet Freedom
proceeding, and the legal authority we
identify today continues to require ETCs
to be common carriers, we see no risk
that a non-common carrier will receive
an ETC designation.
81. We thus reject arguments that we
cannot support broadband internet
access service in the Lifeline program if
it is not classified as a
telecommunications service. Our
approach outlined today does not
impact the ETC designation process or
the requirement that support recipients
be ETCs and, consistent with the statute
ETCs will still offer voice telephony
service and be required to be common
carriers. While the Commission has not
classified VoIP service as a
telecommunications service, it has
consistently recognized that a provider
may offer VoIP on a Title II basis if it
voluntarily ‘‘holds itself out as a
telecommunications carrier and
complies with appropriate federal and
state requirements.’’ Thus, the
Commission is continuing to support
telecommunications services pursuant
to its authority under section 254 of the
Act. This approach simply enables low-
income consumers to receive discounts
for broadband internet access service
provided by ETCs, allowing us to work
towards fulfilling our principles of
ensuring affordable rates and access to
advanced telecommunications and
information services across all regions
of the Nation.
82. We disagree with commenters that
argue that the Restoring Internet
Freedom Order renders the Commission
unable to ensure the availability of
Lifeline-supported options for low-
income consumers. The Commission
retains the authority, if warranted, to
condition Lifeline support on the
provision of broadband internet access
service, as it has in the context of the
high-cost mechanism. The limited
example put forward in the context of
AT&T’s grandfathering of legacy DSL
does not persuade us otherwise—as the
commenters who raise the point admit,
‘‘the loss of these DSL connections does
not necessarily mean a loss to existing
Lifeline subscribers.’’ We also note that
the Restoring Internet Freedom Order
does nothing to change the procedures
by which carriers may seek to relinquish
their status as ETCs, which will
continue to be governed by section
214(e)(4) of the Act to ensure that
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geographic areas are not left without a
Lifeline provider.
83. We further reject arguments that
the Commission cannot apply the legal
authority articulated in the USF/ICC
Transformation Order because of the
differences between the high-cost
program and the Lifeline program.
However, as articulated in this section,
we do not believe that the program
differences are material with respect to
the Commission’s authority under
section 254(e) to provide funding for
broadband service in the Lifeline
program, as funding will ultimately flow
to supported facilities. Every ETC,
whether they participate in the high-
cost program, Lifeline program, or both
programs, necessarily incurs network
costs associated with the provision of
the supported voice service and
advanced services, such as broadband
internet access service. In the case of
facilities-based Lifeline providers, these
costs arise in deploying and maintaining
their own broadband-capable networks
used to offer the voice telephony
supported service. Resellers
participating in the Lifeline program
likewise incur costs associated with the
network used to offer the supported
voice service by directly compensating
the underlying facilities-based providers
for the wholesale voice services. Some
commenters also raised concerns that
our actions to reclassify broadband
internet access service as an information
service would bar resellers from the
Lifeline program. In the 2017 Lifeline
NPRM the Commission sought comment
on the continued role of resellers in the
Lifeline program more generally, as well
as on other possible rule changes that
might be warranted should resellers
remain in the Lifeline program.
Although we do not adopt changes in
that regard in this Order, those issues
remain pending. Both programs
ultimately offset those network costs.
The main difference is that the high-cost
program provides supplemental support
for areas that are especially expensive to
serve, while the Lifeline program
compensates providers for some of their
costs so they can offer discounted
service to low-income Americans, thus
incentivizing ETCs to provision,
maintain, and upgrade facilities and
services where low-income consumers
live. Contrary to some commenters’
suggestion, this statutory authority is
entirely consistent with the Lifeline
program’s goals of promoting
affordability and availability of voice
and broadband services. Indeed, the
Commission first established the
Lifeline program goal of ensuring the
availability of broadband service in the
2012 Lifeline Order—well before the
Commission decided to impose Title II
regulation on broadband internet access
service. The Commission’s authority to
disburse Lifeline funds for broadband
service is in part due to the fact that
such funding ultimately flows to
support the provision, maintenance, and
upgrading of the voice-capable
networks, but the Commission can and
does still direct Lifeline funds in a way
to best promote affordable voice and
broadband services for low-income
consumers.
84. We also reject arguments by some
commenters that we cannot justify
supporting broadband internet access
service through the Lifeline program if
the supported voice service is scheduled
to eventually receive no Lifeline
reimbursement in certain parts of the
country. In the 2016 Lifeline Order, the
Commission adopted a phasing out of
support for voice-only service in the
Lifeline program in most areas after
December 1, 2021. In doing so, the
Commission concluded that ‘‘Lifeline
should transition to focus more on
[broadband internet access service]
given the increasingly important role
that broadband service plays in the
marketplace. . . .’’ The Commission
also created a carve-out of the support
phasedown, allowing continued support
to voice services at a rate of $5.25 per
month after December 1, 2021 to eligible
subscribers served by a provider that is
the only Lifeline provider in a Census
block. First, support for voice-only
services is not ending entirely, as the
Lifeline program will continue to offer
support to eligible subscribers in a
Census block with only one ETC.
Nothing in the text of section 254
requires an ETC to receive universal
service funds everywhere it offers the
section 254(c)(1) supported service.
Section 254(c)(1) refers to the services
included in the definition of universal
service as being ‘‘supported by Federal
universal service support mechanisms,’’
but does not specify the details of those
mechanism or under what range of
circumstances universal service funds
must actually flow. Likewise, although
section 254(e) requires ETCs to use
support ‘‘only for the provision,
maintenance, and upgrading of facilities
and services for which the support is
intended,’’ it does not specify how the
Commission must direct those funds to
be allocated as between support for ‘‘the
provision . . . of services’’ vs. ‘‘the
provision, maintenance, and upgrading
of facilities’’ used to offer the section
254(c)(1) supported service. Second,
voice services will continue to be a
component of many Lifeline offerings,
as nearly 90% of Lifeline subscribers
currently choose to apply their discount
to a bundled offering that includes voice
service along with broadband internet
access service that meets the program’s
minimum service standards. As such,
even as the voice phasedown continues,
the Commission will continue to
support the provision of voice services
and voice-capable networks by ETCs.
We therefore disagree with commenters
asserting that it is unreasonable to claim
that Lifeline support would benefit
voice facilities while continuing to
phase out support for voice-only
service. As to comments urging the
Commission to pause the voice
phasedown at this time, we decline to
decide here and the issue remains open
from the 2017 Lifeline NPRM. This
Order is limited to addressing the three
discrete issues remanded to the
Commission by the D.C. Circuit.
Nevertheless, we believe that a
continued voice phasedown does not
impede the Commission from relying on
the legal authority we have explained
herein.
85. We also disagree with commenters
who argue that the best approach to
supporting broadband internet access
service through Lifeline is to simply
reclassify broadband internet access
service as a Title II service. We find our
approach today instead allows for the
Lifeline program to fund broadband
internet access service offerings, while
also allowing the Commission to
continue to apply a light-touch
regulatory approach to broadband
internet access service, and will
promote investment and innovation
without grafting costly and restrictive
requirements onto a program that is
focused on making vital services
affordable. Free Press also raises the
possibility that as providers transition
away from offering switched telephone
service they may not be eligible to
participate in the Lifeline program with
broadband internet access service
classified as a Title I service. While Free
Press casually raises this concern, it
does not offer any evidence of it
impacting the Lifeline marketplace
today, or anytime in the near future. As
such, we decline to address this concern
at this time and believe that voice
telephony as a supported service will
not present any near-term challenges for
providers.
86. We next make necessary
adjustments to the Commission’s rules.
In the 2016 Lifeline Order, the
Commission amended § 54.101 of its
rules to include broadband internet
access service as a supported service. As
we discuss above, the classification of
broadband internet access service as an
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information service does not bar us from
providing support for the provision of
broadband by ETCs who are providing
voice telephony, but broadband internet
access service cannot be an independent
supported telecommunications service
under section 254(c). Although section
254(e) directs that ‘‘[a] carrier that
receives [universal service] support
shall use that support only for the
provision, maintenance, and upgrading
of facilities and services for which the
support is intended,’’ section 254 is
silent about the mechanics by which the
Commission may determine the
magnitude of high-cost or Lifeline
support an ETC will receive, including
the conditions that trigger the flow of
support. By contrast, where Congress
wished to specify in greater detail the
mechanics of how support amounts
would be calculated and triggered, it did
so. Consequently, so long as the Lifeline
funds ultimately are used consistent
with the requirements of section 254(e),
there is no statutory bar to conditioning
the receipt of support on the provision
of an information service offered over
the network that provides the section
254(c)(1) supported service, and
calculating support amounts in a way
that accounts for the fulfillment of that
condition. The California PUC
previously argued that if broadband
internet access service were reclassified
as an information service, the
Commission may not have the ability to
impose its Lifeline minimum service
standards on broadband services offered
in the Lifeline program because of the
limitations of section 254(c). As stated
here, however, section 254(c) does not
impose a bar on how the Commission
might trigger universal support to a
properly designated ETC. In the high-
cost program, the Commission long has
provided support without relying on a
trigger based solely on the provision of
the section 254(c)(1) supported service.
For example, the Commission
calculated the amount of high-cost
support for rate-of-return carriers based
on the number of voice or broadband
internet access services lines they
provided, even though only voice
telephony was the section 254(c)(1)
supported service. Thus, because
broadband internet access service is not
a section 254(c) telecommunications
service, we remove broadband internet
access service from the list of supported
services in § 54.101, while preserving
our authority to fund broadband
internet access service through the
Lifeline program.
87. We note that, while we did not
propose this specific rule change in the
2017 Lifeline NPRM, the Commission
did specifically seek comment on
relying on section 254(e) as the legal
authority to support broadband internet
access service in the Lifeline program
without relying on the regulatory
classification of broadband internet
access service as a telecommunications
service. Since this rule change is a
direct result of our reliance on this legal
theory, we find that removing
broadband internet access service as a
supported service in these rule sections
is supported by the text of the NPRM
itself and, in addition, is in any event
a ‘‘logical outgrowth’’ of the proposal in
the NPRM. We also note that this rule
change will have little practical effect
on ETCs as the authority outlined today
allows the Lifeline program to continue
funding broadband internet access
service offerings.
88. Continued Support for Plans that
Only Satisfy the Broadband Minimum
Service Standards. We next clarify that
the Lifeline program can continue to
provide support for broadband-only
offerings by ETCs to qualifying low-
income households. In order to receive
reimbursement for providing a Lifeline
service, ETCs must identify if the
service meets the mandatory minimum
standards for voice or broadband to
determine the amount of support they
can claim from the Lifeline program.
With the phasedown of voice support
proceeding in accordance with the
Commission’s current rules, we expect
to see some subscribers who receive a
Lifeline service that only qualifies for
Lifeline support because the service
meets the program’s minimum service
standards for broadband internet access
service. Even though these offerings do
not rely on a qualifying voice service—
although they could very well include
some level of bundled non-qualifying
voice service, as many Lifeline
subscribers receive today—we can
continue to provide reimbursement
under the statutory authority we outline
today. As the Mozilla court notes,
section 214(e) requires that entities
designated as ETCs must be common
carriers. The common carrier
requirement of section 214(e) creates a
limitation on the type of entities that
may be designated as an ETC, but it
does not prohibit an ETC from
providing a broadband only-service to a
qualifying low-income household and
also receiving Lifeline support for that
service to that household. The statute
does not mandate that ETCs only offer
service on a common carrier basis, nor
does it prevent the Commission from
reimbursing broadband internet access
service offerings as a way to accomplish
the principles on which the
Commission is required to base its
universal service policies pursuant to
section 254(b).
89. Using universal support to
promote advanced services by ETCs that
are, by definition, common carriers is
consistent with past Commission efforts
in the high-cost mechanism. In 2016, for
example, the Commission allowed high-
cost support for broadband-only loops
for rate-of-return carriers. In doing so,
the Commission stated that it was
applying the principle first outlined in
the USF/ICC Transformation Order
‘‘that universal service support should
be directed where possible to networks
that provide advanced services, as well
as voice services.’’ NaLA echoed this
approach when it stated that, even if the
Commission continues its phase-down
in Lifeline voice support, ‘‘as long as
voice telephony service remains a
supported service and ETCs are offering
voice service, the Commission can
continue to provide universal service
funding only for the provision of
broadband service. . . .’’ Under the
approach we adopt today, ETCs,
operating as common carriers, would
still be required to offer voice service,
including through bundled service
offerings, but the Lifeline program
would target its resources to induce
ETCs to provide broadband internet
access service offerings, both bundled
and standalone, to Lifeline subscribers.
90. A number of commenters
expressed concern that the Commission
would be unable to support broadband-
only providers as a result of broadband
internet access service’s status as an
information service. The Commission
has already decided this issue and it is
no longer before us now. As we
explained in the 2019 Lifeline Order,
broadband-only providers that do not
offer any voice service cannot
participate in the program because they
are not common carriers offering the
supported voice service and thus do not
satisfy the requirement in section
214(e)(1) that ETCs ‘‘offer the services
that are supported by the Federal
universal support mechanisms’’ under
section 254(c). AARP encourages us to
use section 706 of the 1996 Act as a
source of authority to support stand-
alone broadband. However, we have
determined that section 706 is not a
grant of regulatory authority and merely
a hortatory congressional statement.
91. The California PUC raises a
concern that classifying broadband
internet access service as a Title I
service will impact states’ ability to
support broadband-only services in state
universal service programs. We
disagree. Congress specifically
delineated the states’ authority to
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‘‘advance universal service, protect the
public safety and welfare, ensure the
continued quality of telecommunication
service, and safeguard the rights of
consumers.’’ This authority is broad
enough for the states to accomplish their
universal service goals without forcing a
burdensome federal regulatory regime
(i.e., Title II) on broadband internet
access service offerings. It is true that
the text specifically references
telecommunications services, but that
reference is part of a larger list of areas
where states can act as long as the state
action is not inconsistent with section
254. Section 254 not only permits a state
to work with telecommunications
carriers in the state to support its own
universal service programs, but it also
allows states to ‘‘adopt regulations to
provide for additional definitions and
standards to preserve and advance
universal service within the state. . . .’’
As long as those state actions do not rely
on or burden Federal universal support
mechanisms, then a state is permitted to
structure its programs in a way that it
deems best to promote universal service.
92. Finally, while we are confident
that our analysis of the statutory
authority allows for the continued
support of broadband internet access
service through the Lifeline program, we
would still reach the same conclusion
on the classification of broadband
internet access service that we did in
the Restoring Internet Freedom Order
even if a court were to conclude that the
Lifeline program could not support
broadband internet access service. As
the Commission previously stated, a
return to Title I classification better
facilitates critical broadband investment
through the removal of regulatory
uncertainty and lower compliance
burdens. Further, Title I classification
allows for greater freedom to operate
and serve customers in rural or
underserved areas of the country.
Additionally, by reclassifying
broadband internet access service as a
Title I service the Commission sought to
bring greater regulatory certainty to the
market, removing a fog that stifled
innovation. As such, we believe that the
benefits of reclassification would
outweigh the removal of broadband
internet access service from the Lifeline
program, were the sound statutory
authority relied on today be found
insufficient.
D. The Order on Remand Is Consistent
With the Administrative Procedure Act
1. The Commission’s Notice and
Comment Procedures Comported With
the Administrative Procedure Act
93. We conclude that we have
satisfied the notice and comment
requirements of the Administrative
Procedure Act (APA) in this proceeding.
We therefore reject arguments to the
contrary. The Restoring Internet
Freedom NPRM (82 FR 25568, June 2,
2017) sought comment on returning to
the long-standing information service
classification of broadband internet
access service, and we did just that in
the Restoring Internet Freedom Order.
The D.C. Circuit’s decision in Mozilla
left the regulatory approach adopted in
the Restoring Internet Freedom Order in
place while remanding to us for further
analysis the effect on certain public
safety, pole attachment, and Lifeline
universal service support issues. The
Commission sought comment in the
2017 Lifeline NPRM on, among other
things, the treatment of broadband
internet access service under the
Lifeline program irrespective of the
regulatory classification of that service.
94. Agencies generally have broad
discretion to choose the appropriate
procedural response to a court remand,
including whether and to what extent to
conduct a new rulemaking proceeding.
In this Order on Remand, we do not
reconsider or alter any aspect of the
regulatory approach adopted in the
Restoring Internet Freedom Order. To
the extent that commenters contend that
additional notice would be required to
adopt an approach different than the
one we take in this Order on Remand,
those arguments are not applicable here.
Instead, we simply act in response to
the Mozilla remand to explain our
decision not to revisit that approach in
light of the three discrete issues
remanded by the D.C. Circuit. Thus, as
a threshold matter, we conclude that the
APA does not compel additional notice
beyond that already provided. Indeed,
except to the extent that we remove
broadband internet access service from
the list of supported services in our
universal service rules, our Order on
Remand procedurally could be
analogized to a decision declining to
initiate a rulemaking to revise the
regulatory approach adopted in the
Restoring Internet Freedom Order in
light of the three remanded issues—
which need not be preceded by its own
notice and comment procedures under
the APA. Alternatively—and again,
except to the extent that we modify our
universal service rules to remove
broadband internet access service from
the list of supported services—our
response to the three remanded issues
could be seen as, at most, an
interpretive rule or policy statement.
95. Independently, we conclude that
even if some form of additional notice
and comment procedures were required
here in light of Mozilla, our procedures
on remand have been sufficient. The
Bureau elected to refresh the record on
issues implicated by the Mozilla remand
to supplement the original Restoring
Internet Freedom rulemaking record and
the record of the 2017 Lifeline NPRM,
consistent with similar actions taken by
the Commission’s Bureaus in many
instances in the past. Nothing in the
D.C. Circuit’s remand displaced the
Commission’s authority to ‘‘conduct its
proceedings in such manner as will best
conduce to the proper dispatch of
business and to the ends of justice,’’ nor
to rely on Bureaus’ actions on delegated
authority for ‘‘the prompt and orderly
conduct of its business.’’ The Bureau’s
request for comment on the Mozilla
remand was published in the Federal
Register (85 FR 12555, March 3, 2020),
hereinafter referred to as ‘‘Restoring
Internet Freedom Remand Public Notice
(PN)’’). We also agree with numerous
commenters that the issues to be
addressed on remand were apparent,
including from the Mozilla decision
itself. Before turning to specific
questions upon which the Bureau
sought to develop the record further, the
Restoring Internet Freedom Remand PN
began with requests for comment
framed in terms that mirrored the scope
of the D.C. Circuit’s remand in Mozilla.
Commenters criticizing the scope of the
Restoring Internet Freedom Remand
PN’s request for comments on the
remanded issues neglect that fact.
Nothing about the Restoring Internet
Freedom Remand PN hindered
commenters from understanding the
supplemental information that the
Commission would be considering or
from raising the arguments they wished
to raise in response to the remand. To
the extent that some court precedent
contemplates notice and comment in
certain circumstances where an agency
engages in new fact-gathering on
remand, the objective is to ensure that
parties have an opportunity to comment
on any new factual information critical
to the agency’s decision whether to
modify a rule on remand. While we
consider the additionally-gathered
information instead to supplement
information in the original rulemaking
record, even if it were critical
information, we find that the objectives
of that precedent have been satisfied
here.
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96. We also find that there was
adequate time for participation by
commenters. Commenters expressing
concern about the timing of the
comment period focus specifically on
the development of the record related to
public safety issues. Commenters do not
identify any inadequacy in the comment
period provided in the Restoring
Internet Freedom Remand PN, which
provided a full opportunity for
commenters to raise public safety
concerns and which the Commission is
considering in responding to the Mozilla
remand. With respect to the Restoring
Internet Freedom Remand PN
requesting comment to supplement the
record in response to the remand, the
process was appropriate, as well. As
USTelecom observes, ‘‘the Commission
published the Notice on March 3, 2020,
more than a month and a half before
comments were due.’’ This comment
cycle included an extension of time ‘‘to
enable state, county, and municipal
governments to be able to respond
adequately to the issues raised in the
Public Notice relating to how the
Commission’s action affects public
safety.’’ This provided ample
opportunity to submit information in
response to the Restoring Internet
Freedom Remand PN. To the extent that
certain parties belatedly sought a further
extension, we agree with the Bureau
that the request was neither timely nor
provided evidence that further
extension of time was warranted.
97. The record also does not persuade
us that there are additional arguments or
information that interested parties in
fact would have raised under a different
comment process that they were unable
to raise in the record for consideration
in this proceeding. We reject arguments
in response to the Restoring Internet
Freedom Remand PN that reiterate
concerns that certain commenters’
efforts to address the COVID–19
pandemic limit their ability to fully
participate even under the extended
comment cycle. Those arguments are
not materially different from the
arguments the Bureau considered and
appropriately rejected in the Further
Extension Denial Order. Further, in
addition to the formal comment process,
parties were able to make ex parte
filings, as well. Insofar as certain parties
sought a further 60-day extension of the
already once-extended comment period,
we note that substantially more than 60
days have passed since that comment
deadline, during which time they have
been free to raise their arguments in ex
parte filings, which are considered by
the Commission as part of the record in
this proceeding.
98. We reject the claims of some
commenters that the U.S. Supreme
Court’s recent decision in DHS v.
Regents of the Univ. of Cal. support
their prior contentions that ‘‘the
Commission must have a formal Notice
of Proposed Rulemaking (NPRM) as a
prelude to issuing any response to the
remand by the Mozilla Court.’’ Contrary
to those claims, DHS v. Regents of the
Univ. of Cal. does not specify that a
new, Commission-level Notice of
Proposed Rulemaking would be
required here. To the extent that DHS v.
Regents of the Univ. of Cal. speaks to the
procedures to be followed when an
agency takes new action to provide
additional explanation on remand, it
does not adopt any one-size-fits-all
approach, but merely observes that the
procedures followed must be whatever
otherwise is required for the relevant
action. In contrast to the posture in that
case—where DHS’s prior decision was
vacated—the D.C. Circuit in Mozilla
remanded without vacatur, leaving the
Restoring Internet Freedom Order in
place, and in this Order on Remand we
do not modify or alter the regulatory
approach adopted there. Consequently,
whatever procedures theoretically might
be required for DHS in response to DHS
v. Regents of the Univ. of Cal., it does
not follow that a new, Commission-level
rulemaking would be required here.
Independently, as discussed above, we
also find that even assuming arguendo
that some manner of additional notice
and comment were required, our
procedures here have been adequate.
2. The Commission Thoroughly
Considered the Relevant Issues on
Remand
99. In the substantive sections of this
Order we thoroughly analyze the effects
of the Restoring Internet Freedom Order
on public safety, pole attachments, and
Lifeline consistent with the D.C.
Circuit’s remand, and explain why those
considerations do not persuade us to
depart from the regulatory approach we
adopted in that Order. This included
addressing the thousands of public
comments by identifying which ones
were responsive to the three specific
issues subject to the remand and
analyzing those responsive arguments
here. Our action satisfies both the
Mozilla remand and the APA’s reasoned
decision-making requirements. We
therefore reject arguments that the
Commission’s analysis of the remanded
issues has failed, or will fail, the
reasoned decision-making requirements
of the APA.
100. Our analysis in the Order on
Remand also demonstrates that we
remained open-minded regarding the
issues remanded in Mozilla. In Little
Sisters of the Poor, the Supreme Court
recently ‘‘decline[d] to evaluate the final
rules [at issue there] under the open-
mindedness test’’ that had been used by
the Third Circuit given that ‘‘the text of
the APA provides the ‘‘maximum
procedural requirements’’ that an
agency must follow in order to
promulgate a rule.’’ The Court
concluded that ‘‘the open-mindedness
test violates the ‘general proposition
that courts are not free to impose upon
agencies specific procedural
requirements that have no basis in the
APA.’ ’’ To the extent that commenters
seek to advance the same basic ‘‘open-
mindedness’’ test here, the Supreme
Court’s decision provides an additional
reason why it is unavailing. But in any
case, we independently conclude that
we did, in fact, remain open-minded for
the reasons discussed in the text. For
one, the cases cited by commenters
expressing concern in this regard
involved scenarios where the court was
evaluating the adequacy of the original
notice or opportunity for comment
rather than where, as here, the agency
is responding to a court’s remand to
consider certain specific issues in
evaluating whether they warrant a
change in its prior decision. Indeed,
rather than evidence that the
Commission had a closed mind on the
remanded issues as some commenters
contend, the solicitation of comments in
the Restoring Internet Freedom Remand
PN reveals our willingness to give full
consideration to those issues. In contrast
to the Bureau’s requests for comment in
the Restoring Internet Freedom Remand
PN, the district court in Int’l
Snowmobile Mfrs. Ass’n v. Norton,
confronted a situation where agency
decisionmakers made ‘‘definitive
statements’’ about the outcome ‘‘before
the [environmental review] process was
complete.’’ A Bureau-level Public
Notice requesting comment does not
similarly represent ‘‘definitive
statements’’ about the outcome the full
Commission will reach in this
proceeding. Our analysis likewise
demonstrates that we remained open-
minded in that regard, but were not
persuaded to depart from our regulatory
approach in the Restoring Internet
Freedom Order on the basis of those
considerations.
101. We also have no obligation in
this proceeding to re-open issues from
the Restoring Internet Freedom Order
that were not remanded by Mozilla.
Some commenters quote language from
DHS v. Regents of the Univ. of Cal., that
an agency supplementing its original
reasoning must ‘‘ ‘deal with the problem
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afresh.’ ’’ To the extent that these
commenters suggest that we therefore
must reopen the issues in the Restoring
Internet Freedom Order more broadly,
we reject that claim. The DHS action at
issue in DHS v. Regents of the Univ. of
Cal. had been both vacated and
remanded in full. The relevant
‘‘problem’’ that DHS was dealing with
there thus was the entirety of its action.
Here, by contrast, the D.C. Circuit
declined to vacate the Restoring Internet
Freedom Order, leaving it in place while
directing the Commission to address
‘‘three discrete points.’’ In this context,
it is most reasonable to define the
‘‘problem’’ that we consider afresh here
to be the effect of the regulatory
approach in the Restoring Internet
Freedom Order on the public safety,
pole attachment, and Lifeline universal
service support issues identified by the
Mozilla court. Insofar as commenters
raise issues beyond the scope of the
remanded issues, we reject them as
outside the scope of this proceeding.
While in some cases commenters raise
issues with no clear nexus to the
remanded issues at all, in other cases
commenters raise arguments that
potentially encompass, but extend
beyond, the remanded issues. We reject
arguments only insofar as they fall
outside or extend beyond the remanded
issues, and otherwise consider them in
our analyses of public safety, pole
attachments, and Lifeline support,
respectively, insofar as they do in fact
bear on any of those issues. Taking up
those broader issues here would
unsettle reasoning and decisions not
rejected by the court, giving us—and
parties supportive of the Restoring
Internet Freedom Order’s regulatory
approach—a task on remand that not
only was not required but that could not
reasonably have been anticipated by
Mozilla’s remand of ‘‘three discrete
points.’’ For example, commenters
relitigate the question whether the
Commission was correct in predicting
that Title I classification would promote
competition, investment, and
innovation—a finding that was affirmed
by the D.C. Circuit and is outside the
scope of the remand. While many
commenters argue that experience
following the Restoring Internet
Freedom Order has borne out the
Commission’s prediction, some argue
that Title I classification has had no
effect in investment, and others still
claim that it has decreased investment.
We need not and cannot settle this
dispute here: Because such issues lie
outside the scope of the remand,
commenters did not have a full and fair
opportunity to address these issues in
the same comprehensive way that they
did prior to the Restoring Internet
Freedom Order. Perhaps for that reason,
the evidence offered in this proceeding
fails to grapple with the effect of Title
I classification on competition,
investment, and innovation with nearly
the same depth of analysis as the studies
submitted in the Restoring Internet
Freedom record, and therefore nothing
in the comments in this remand
proceeding provides firm ground to
revisit the predictive judgment that we
have already made. Should parties wish
to raise issues beyond those subject to
the D.C. Circuit’s remand in support of
a request for new rules, they may do so
in a petition for rulemaking supporting
their request for such broader action.
E. The Order on Remand Is Consistent
With the First Amendment
102. Our Order on Remand also is
consistent with the First Amendment of
the U.S. Constitution. Contrary to the
suggestion of some commenters, neither
the classification of broadband internet
access service as an information service
nor the Restoring Internet Freedom
Remand PN seeking comment on the
Mozilla remand represents a
government restriction on speech that
requires scrutiny under the First
Amendment. In particular, we are not
persuaded that actions taken by
broadband internet access service
providers to manage traffic on their
networks constitutes governmental
action. Nor does the record support the
view that the request for comments in
the Restoring Internet Freedom Remand
PN somehow compelled, restricted, or
otherwise chilled private parties’
speech.
III. Procedural Matters
103. Paperwork Reduction Act. This
document does not contain new or
modified information collection
requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, therefore, it
does not contain any new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
104. Congressional Review Act. The
Commission has determined, and the
Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
concurs that this rule is non-major
under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will
send a copy of this Order on Remand to
Congress and the Government
Accountability Office pursuant to 5
U.S.C. 801(a)(1)(A).
105. People with Disabilities: To
request materials in accessible formats
for people with disabilities (braille,
large print, electronic files, audio
format), send an email to fcc504@fcc.gov
or call the Consumer & Governmental
Affairs Bureau at 202–418–0530 (voice),
202–418–0432 (tty).
106. For further information about
this rulemaking proceeding, please
contact Annick Banoun, Competition
Policy Division, Wireline Competition
Bureau, at (202) 418–1521 or
annick.banoun@fcc.gov.
IV. Supplemental Final Regulatory
Flexibility Analysis
107. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), this Supplemental Final
Regulatory Flexibility Analysis
(Supplemental FRFA) supplements the
Final Regulatory Flexibility Analysis
(FRFA) included in the 2019 Lifeline
Order in WC Docket Nos. 17–287, 11–
42, and 09–197, to the extent required
by the adoption of this Order on
Remand. The Commission sought
written public comment on the
proposals in the 2017 Lifeline NPRM,
including comment on the initial
Regulatory Flexibility Analysis. This
Supplemental FRFA conforms to the
RFA.
A. Need for, and Objectives of, the
Order on Remand
108. The Commission is required by
section 254 of the Communications Act
of 1934, as amended, to promulgate
rules to implement the universal service
provisions of section 254. The Lifeline
program was implemented in 1985 in
the wake of the 1984 divestiture of
AT&T. On May 8, 1997, the Commission
adopted rules to reform its system of
universal service support mechanisms
so that universal service is preserved
and advanced as markets move toward
competition. Since the 2012 Lifeline
Order, the Commission has acted to
address waste, fraud, and abuse in the
Lifeline program and improved program
administration and accountability.
109. In this Order on Remand, the
Commission addresses several items
remanded to it by the D.C. Circuit Court
of Appeals in Mozilla v. FCC. As part of
addressing those issues, the
Commission clarifies its legal authority
for reimbursing broadband internet
access service through the Lifeline
program. This clarification requires
minor revisions to the Commission’s
Lifeline rules. With this action, we
fulfill the Commission’s role as the
steward of the Universal Service Fund
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(USF or Fund) and ensure that the
Lifeline program can continue to
allocate its limited resources to
reimbursing increasingly important
broadband internet access service for
low-income Americans.
B. Summary of Significant Issues Raised
by Public Comments to the IRFA or
FRFA
110. The Commission received no
comments in direct response to the
IRFA contained in the 2017 Lifeline
NPRM or the FRFA in the 2019 Lifeline
Order.
C. Response to Comments by the Chief
Counsel for Advocacy of the Small
Business Administration
111. Pursuant to the Small Business
Jobs Act of 2010, which amended the
RFA, the Commission is required to
respond to any comments filed by the
Chief Counsel of the Small Business
Administration (SBA), and to provide a
detailed statement of any change made
to the proposed rule(s) as a result of
those comments.
112. The Chief Counsel did not file
any comments in response to the
proposed rule(s) in this proceeding.
D. Description and Estimate of the
Number of Small Entities to Which
Rules May Apply
113. The RFA directs agencies to
provide a description of and, where
feasible, an estimate of the number of
small entities that may be affected by
the rules adopted herein. The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act. A small
business concern is one that: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the Small Business
Administration (SBA).
114. Small Businesses, Small
Organizations, Small Governmental
Jurisdictions. Our actions, over time,
may affect small entities that are not
easily categorized at present. We
therefore describe here, at the outset,
three broad groups of small entities that
could be directly affected herein. First,
while there are industry specific size
standards for small businesses that are
used in the regulatory flexibility
analysis, according to data from the
SBA’s Office of Advocacy, in general a
small business is an independent
business having fewer than 500
employees. These types of small
businesses represent 99.9% of all
businesses in the United States, which
translates to 30.7 million businesses.
115. Next, the type of small entity
described as a ‘‘small organization’’ is
generally ‘‘any not-for-profit enterprise
which is independently owned and
operated and is not dominant in its
field.’’ The Internal Revenue Service
(IRS) uses a revenue benchmark of
$50,000 or less to delineate its annual
electronic filing requirements for small
exempt organizations. Nationwide, for
tax year 2018, there were approximately
571,709 small exempt organizations in
the U.S. reporting revenues of $50,000
or less according to the registration and
tax data for exempt organizations
available from the IRS.
116. Finally, the small entity
described as a ‘‘small governmental
jurisdiction’’ is defined generally as
‘‘governments of cities, counties, towns,
townships, villages, school districts, or
special districts, with a population of
less than fifty thousand.’’ U.S. Census
Bureau data from the 2017 Census of
Governments indicate that there were
90,075 local governmental jurisdictions
consisting of general purpose
governments and special purpose
governments in the United States. Of
this number there were 36,931 general
purpose governments (county,
municipal and town or township) with
populations of less than 50,000 and
12,040 special purpose governments—
independent school districts with
enrollment populations of less than
50,000. Accordingly, based on the 2017
U.S. Census of Governments data, we
estimate that at least 48,971 entities fall
into the category of ‘‘small
governmental jurisdictions.’’
1. Wireline Providers
117. Incumbent Local Exchange
Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for incumbent local
exchange services. The closest
applicable NAICS Code category is
Wired Telecommunications Carriers.
Under the applicable SBA size standard,
such a business is small if it has 1,500
or fewer employees. U.S. Census Bureau
data for 2012 indicate that 3,117 firms
operated the entire year. Of this total,
3,083 operated with fewer than 1,000
employees. Consequently, the
Commission estimates that most
providers of incumbent local exchange
service are small businesses that may be
affected by our actions. According to
Commission data, one thousand three
hundred and seven (1,307) Incumbent
Local Exchange Carriers reported that
they were incumbent local exchange
service providers. Of this total, an
estimated 1,006 have 1,500 or fewer
employees. Thus, using the SBA’s size
standard the majority of incumbent
LECs can be considered small entities.
118. Competitive Local Exchange
Carriers (Competitive LECs),
Competitive Access Providers (CAPs),
Shared-Tenant Service Providers, and
Other Local Service Providers. Neither
the Commission nor the SBA has
developed a small business size
standard specifically for these service
providers. The appropriate NAICS Code
category is Wired Telecommunications
Carriers and under that size standard,
such a business is small if it has 1,500
or fewer employees. U.S. Census Bureau
data for 2012 indicate that 3,117 firms
operated during that year. Of that
number, 3,083 operated with fewer than
1,000 employees. Based on these data,
the Commission concludes that the
majority of Competitive LECS, CAPs,
Shared-Tenant Service Providers, and
Other Local Service Providers, are small
entities. According to Commission data,
1,442 carriers reported that they were
engaged in the provision of either
competitive local exchange services or
competitive access provider services. Of
these 1,442 carriers, an estimated 1,256
have 1,500 or fewer employees. In
addition, 17 carriers have reported that
they are Shared-Tenant Service
Providers, and all 17 are estimated to
have 1,500 or fewer employees. Also, 72
carriers have reported that they are
Other Local Service Providers. Of this
total, 70 have 1,500 or fewer employees.
Consequently, based on internally
researched FCC data, the Commission
estimates that most providers of
competitive local exchange service,
competitive access providers, Shared-
Tenant Service Providers, and Other
Local Service Providers are small
entities.
119. Interexchange Carriers (IXCs).
Neither the Commission nor the SBA
has developed a small business size
standard specifically for Interexchange
Carriers. The closest applicable NAICS
Code category is Wired
Telecommunications Carriers. The
applicable size standard under SBA
rules is that such a business is small if
it has 1,500 or fewer employees. U.S.
Census Bureau data for 2012 indicate
that 3,117 firms operated for the entire
year. Of that number, 3,083 operated
with fewer than 1,000 employees.
According to internally-developed
Commission data, 359 companies
reported that their primary
telecommunications service activity was
the provision of interexchange services.
Of this total, an estimated 317 have
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1,500 or fewer employees.
Consequently, the Commission
estimates that the majority of
interexchange service providers are
small entities.
120. Operator Service Providers
(OSPs). Neither the Commission nor the
SBA has developed a small business
size standard specifically for operator
service providers. The closest applicable
NAICS Code category is Wired
Telecommunications Carriers. The
applicable size standard under SBA
rules is that such a business is small if
it has 1,500 or fewer employees. U.S.
Census Bureau data for 2012 indicate
that 3,117 firms operated for the entire
year. Of that number, 3,083 operated
with fewer than 1,000 employees.
According to internally developed
Commission data, 359 companies
reported that their primary
telecommunications service activity was
the provision of interexchange services.
Of this total, an estimated 317 have
1,500 or fewer employees.
Consequently, the Commission
estimates that the majority of OSPs are
small entities.
121. Local Resellers. The SBA has not
developed a small business size
standard specifically for Local Resellers.
The SBA category of
Telecommunications Resellers is the
closest NAICS code category for local
resellers. The Telecommunications
Resellers industry comprises
establishments engaged in purchasing
access and network capacity from
owners and operators of
telecommunications networks and
reselling wired and wireless
telecommunications services (except
satellite) to businesses and households.
Establishments in this industry resell
telecommunications; they do not
operate transmission facilities and
infrastructure. Mobile virtual network
operators (MVNOs) are included in this
industry. Under the SBA’s size
standard, such a business is small if it
has 1,500 or fewer employees. 2012
Census Bureau data shows that 1,341
firms provided resale services during
that year. Of that number, all operated
with fewer than 1,000 employees. Thus,
under this category and the associated
small business size standard, the
majority of these resellers can be
considered small entities. According to
Commission data, 213 carriers have
reported that they are engaged in the
provision of local resale services. Of
these, an estimated 211 have 1,500 or
fewer employees and two have more
than 1,500 employees. Consequently,
the Commission estimates that the
majority of local resellers are small
entities that may be affected by the rules
adopted.
122. Toll Resellers. The Commission
has not developed a definition for Toll
Resellers. The closest NAICS Code
Category is Telecommunications
Resellers. The Telecommunications
Resellers industry comprises
establishments engaged in purchasing
access and network capacity from
owners and operators of
telecommunications networks and
reselling wired and wireless
telecommunications services (except
satellite) to businesses and households.
Establishments in this industry resell
telecommunications; they do not
operate transmission facilities and
infrastructure. MVNOs are included in
this industry. The SBA has developed a
small business size standard for the
category of Telecommunications
Resellers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. 2012 U.S. Census
Bureau data show that 1,341 firms
provided resale services during that
year. Of that number, 1,341 operated
with fewer than 1,000 employees. Thus,
under this category and the associated
small business size standard, the
majority of these resellers can be
considered small entities. According to
Commission data, 881 carriers have
reported that they are engaged in the
provision of toll resale services. Of this
total, an estimated 857 have 1,500 or
fewer employees. Consequently, the
Commission estimates that the majority
of toll resellers are small entities.
2. Wireless Carriers and Service
Providers
123. Wireless Telecommunications
Carriers (except Satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
services, paging services, wireless
internet access, and wireless video
services. The appropriate size standard
under SBA rules is that such a business
is small if it has 1,500 or fewer
employees. For this industry, U.S.
Census Bureau data for 2012 show that
there were 967 firms that operated for
the entire year. Of this total, 955 firms
employed fewer than 1,000 employees
and 12 firms employed of 1000
employees or more. Thus under this
category and the associated size
standard, the Commission estimates that
the majority of Wireless
Telecommunications Carriers (except
Satellite) are small entities. The
Commission’s own data—available in its
Universal Licensing System—indicate
that, as of August 31, 2018 there are 265
Cellular licensees that will be affected
by our actions. The Commission does
not know how many of these licensees
are small, as the Commission does not
collect that information for these types
of entities. Similarly, according to
internally developed Commission data,
413 carriers reported that they were
engaged in the provision of wireless
telephony, including cellular service,
Personal Communications Service
(PCS), and Specialized Mobile Radio
(SMR) Telephony services. Of this total,
an estimated 261 have 1,500 or fewer
employees, and 152 have more than
1,500 employees. Thus, using available
data, we estimate that the majority of
wireless firms can be considered small.
124. Wireless Communications
Services. This service can be used for
fixed, mobile, radiolocation, and digital
audio broadcasting satellite uses. The
Commission defined ‘‘small business’’
for the wireless communications
services (WCS) auction as an entity with
average gross revenues of $40 million
for each of the three preceding years,
and a ‘‘very small business’’ as an entity
with average gross revenues of $15
million for each of the three preceding
years. The SBA has approved these
small business size standards. In the
Commission’s auction for geographic
area licenses in the WCS there were
seven winning bidders that qualified as
‘‘very small business’’ entities, and one
winning bidder that qualified as a
‘‘small business’’ entity.
125. Satellite Telecommunications
Providers. This category comprises firms
‘‘primarily engaged in providing
telecommunications services to other
establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ Satellite
telecommunications service providers
include satellite and earth station
operators. The category has a small
business size standard of $35 million or
less in average annual receipts, under
SBA rules. For this category, U.S.
Census Bureau data for 2012 show that
there were a total of 333 firms that
operated for the entire year. Of this
total, 299 firms had annual receipts of
less than $25 million. Consequently, we
estimate that the majority of satellite
telecommunications providers are small
entities.
126. Common Carrier Paging. As
noted, since 2007 the Census Bureau
has placed paging providers within the
broad economic census category of
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Wireless Telecommunications Carriers
(except Satellite).
127. In addition, in the Paging Second
Report and Order (83 FR 19440, May 3,
2018), the Commission adopted a size
standard for ‘‘small businesses’’ for
purposes of determining their eligibility
for special provisions such as bidding
credits and installment payments. A
small business is an entity that, together
with its affiliates and controlling
principals, has average gross revenues
not exceeding $15 million for the
preceding three years. The SBA has
approved this definition. An initial
auction of Metropolitan Economic Area
(‘‘MEA’’) licenses was conducted in the
year 2000. Of the 2,499 licenses
auctioned, 985 were sold. Fifty-seven
companies claiming small business
status won 440 licenses. A subsequent
auction of MEA and Economic Area
(‘‘EA’’) licenses was held in the year
2001. Of the 15,514 licenses auctioned,
5,323 were sold. One hundred thirty-
two companies claiming small business
status purchased 3,724 licenses. A third
auction, consisting of 8,874 licenses in
each of 175 EAs and 1,328 licenses in
all but three of the 51 MEAs, was held
in 2003. Seventy-seven bidders claiming
small or very small business status won
2,093 licenses.
128. Currently, there are
approximately 74,000 Common Carrier
Paging licenses. According to the most
recent Trends in Telephone Service, 291
carriers reported that they were engaged
in the provision of ‘‘paging and
messaging’’ services. Of these, an
estimated 289 have 1,500 or fewer
employees and two have more than
1,500 employees. We estimate that the
majority of common carrier paging
providers would qualify as small
entities under the SBA definition.
129. Wireless Telephony. Wireless
telephony includes cellular, personal
communications services, and
specialized mobile radio telephony
carriers. The closest applicable SBA
category is Wireless
Telecommunications Carriers (except
Satellite). Under the SBA small business
size standard, a business is small if it
has 1,500 or fewer employees. For this
industry, U.S. Census Bureau data for
2012 show that there were 967 firms
that operated for the entire year. Of this
total, 955 firms had fewer than 1,000
employees and 12 firms had 1000
employees or more. Thus under this
category and the associated size
standard, the Commission estimates that
a majority of these entities can be
considered small. According to
Commission data, 413 carriers reported
that they were engaged in wireless
telephony. Of these, an estimated 261
have 1,500 or fewer employees and 152
have more than 1,500 employees.
Therefore, more than half of these
entities can be considered small.
130. All Other Telecommunications.
The ‘‘All Other Telecommunications’’
category is comprised of establishments
primarily engaged in providing
specialized telecommunications
services, such as satellite tracking,
communications telemetry, and radar
station operation. This industry also
includes establishments primarily
engaged in providing satellite terminal
stations and associated facilities
connected with one or more terrestrial
systems and capable of transmitting
telecommunications to, and receiving
telecommunications from, satellite
systems. Establishments providing
internet services or voice over internet
protocol (VoIP) services via client-
supplied telecommunications
connections are also included in this
industry. The SBA has developed a
small business size standard for ‘‘All
Other Telecommunications’’, which
consists of all such firms with annual
receipts of $35 million or less. For this
category, U.S. Census Bureau data for
2012 show that there were 1,442 firms
that operated for the entire year. Of
those firms, a total of 1,400 had annual
receipts less than $25 million and 15
firms had annual receipts of $25 million
to $49,999,999. Thus, the Commission
estimates that the majority of ‘‘All Other
Telecommunications’’ firms potentially
affected by our action can be considered
small.
3. Internet Service Providers
131. Internet Service Providers
(Broadband). Broadband internet
service providers include wired (e.g.,
cable, DSL) and VoIP service providers
using their own operated wired
telecommunications infrastructure fall
in the category of Wired
Telecommunication Carriers. Wired
Telecommunications Carriers are
comprised of establishments primarily
engaged in operating and/or providing
access to transmission facilities and
infrastructure that they own and/or
lease for the transmission of voice, data,
text, sound, and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. The SBA size standard for
this category classifies a business as
small if it has 1,500 or fewer employees.
U.S. Census Bureau data for 2012 show
that there were 3,117 firms that operated
that year. Of this total, 3,083 operated
with fewer than 1,000 employees.
Consequently, under this size standard
the majority of firms in this industry can
be considered small.
E. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
132. As the changes enacted today are
primarily clarifications of existing
Commission rules or statutory
authorities, we do not anticipate that the
changes will result in significant
additional compliance requirements for
small entities. However, some small
entities may have an additional burden.
For those changes, we have determined
that the clarity the rule changes will
bring to the Lifeline program outweighs
the burden of any increased compliance
concerns. We have noted the applicable
rule changes below impacting small
entities.
133. Compliance burdens. The rules
we implement impose some compliance
burdens on small entities by requiring
them to become familiar with the new
rules to comply with them. In most
instances, the burden of becoming
familiar with the new rule in order to
comply with it is the only additional
burden the rule imposes.
134. Adjusting systems to account for
potential changes in Lifeline
reimbursement rates. The rules we
implement may require small entities to
change their billing systems, customer
service plans, and other business
operations to account for modifications
in the Lifeline supported services. We
believe these changes will not be
significant.
F. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
135. The RFA requires an agency to
describe any significant, specifically
small business, alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rule for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.’’
136. This rulemaking could impose
minimal additional burdens on small
entities. These impacted small entities
should already be familiar with the
Commission’s supported services rules,
but the removal of broadband internet
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access service as a defined supported
service may cause some small entities to
adjust their business practices.
137. The Commission will send a
copy of this Order on Remand including
this Supplemental FRFA, in a report to
be sent to Congress pursuant to the
Congressional Review Act. In addition,
the Commission will send a copy of this
Order on Remand, including the
Supplemental FRFA, to the Chief
Counsel for Advocacy of the SBA. A
copy of this Order on Remand and the
Supplemental FRFA (or summaries
thereof) will also be published in the
Federal Register.
V. Ordering Clauses
138. Accordingly, It is ordered that,
pursuant to sections 1–4, 201, 230, 231,
254, 257, 303, 332, 403, 501, and 503 of
the Communications Act of 1934, as
amended, 47 U.S.C.151–154, 201, 230,
231, 254, 257, 303, 332, 403, 501, and
503, and § 1.2 of the Commission’s
rules, 47 CFR 1.2, this Order is Adopted.
139. It is further ordered that,
pursuant to §§ 1.4(b)(1) and 1.103(a) of
the Commission’s rules, 47 CFR
1.4(b)(1), 1.103(a), this Order on
Remand shall be effective 30 days after
publication in the Federal Register.
140. It is further ordered that part 54
of the Commission’s rules Is Amended
as set forth in Appendix A of the Order
on Remand.
141. It is further ordered that the
Commission shall send a copy of this
Order on Remand to Congress and to the
Government Accountability Office
pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
142. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Remand, including the
Final Regulatory Flexibility Analysis
(FRFA), to the Chief Counsel for
Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 54
Communications common carriers,
Health facilities, Infants and children,
Internet, Libraries, Puerto Rico,
Reporting and recordkeeping
requirements, Schools,
Telecommunications, Telephone, Virgin
Islands.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
The Federal Communications
Commission amends part 54 of title 47
of the Code of Federal Regulations as
follows:
PART 54—UNIVERSAL SERVICE
1. The authority citation for part 54
continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 155, 201,
205, 214, 219, 220, 229, 254, 303(r), 403,
1004, and 1302 unless otherwise noted.
2. Revise § 54.101 to read as follows:
§ 54.101 Supported services for rural,
insular, and high cost areas.
(a) Voice telephony services shall be
supported by Federal universal service
support mechanisms. Eligible voice
telephony services must provide voice
grade access to the public switched
network or its functional equivalent;
minutes of use for local service
provided at no additional charge to end
users; access to the emergency services
provided by local government or other
public safety organizations, such as 911
and enhanced 911, to the extent the
local government in an eligible carrier’s
service area has implemented 911 or
enhanced 911 systems; and toll
limitation services to qualifying low-
income consumers as provided in
subpart E of this part.
(b) An eligible telecommunications
carrier eligible to receive high-cost
support must offer voice telephony
service as set forth in paragraph (a) of
this section in order to receive Federal
universal service support.
(c) An eligible telecommunications
carrier (ETC) subject to a high-cost
public interest obligation to offer
broadband internet access services and
not receiving Phase I frozen high-cost
support must offer broadband services
within the areas where it receives high-
cost support consistent with the
obligations set forth in this subpart and
subparts D, K, L, and M of this part.
(d) Any ETC must comply with
subpart E of this part.
3. Amend § 54.400 by revising
paragraph (n) to read as follows:
§ 54.400 Terms and definitions.
* * * * *
(n) Supported service. Voice
telephony service is the supported
service for the Lifeline program.
* * * * *
4. Amend § 54.403 by revising
paragraph (b)(1) to read as follows:
§ 54.403 Lifeline support amount.
* * * * *
(b) * * *
(1) Eligible telecommunications
carriers that charge Federal End User
Common Line charges or equivalent
Federal charges must apply Federal
Lifeline support to waive the Federal
End User Common Line charges for
Lifeline subscribers if the carrier is
seeking Lifeline reimbursement for
eligible voice telephony service
provided to those subscribers. Such
carriers must apply any additional
Federal support amount to a qualifying
low-income consumer’s intrastate rate,
if the carrier has received the non-
Federal regulatory approvals necessary
to implement the required rate
reduction. Other eligible
telecommunications carriers must apply
the Federal Lifeline support amount,
plus any additional support amount, to
reduce the cost of any generally
available residential service plan or
package offered by such carriers that
provides at least one service
commensurate with the requirements
outlined in § 54.408, and charge Lifeline
subscribers the resulting amount.
* * * * *
[FR Doc. 2020–25880 Filed 1–6–21; 8:45 am]
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