Today, Public Knowledge, Access Humboldt, Access Now, and the National Hispanic Media Coalition filed comments in response to the Federal Communications Commission’s Public Notice where it seeks to “refresh” the net neutrality record. In Mozilla v. FCC, although the court upheld much of the agency’s 2017 net neutrality repeal, the court also sent several issues back to the Commission where it had either failed to explain its reasoning or violated the law. While Public Knowledge finds the agency’s approach to the remands sorely lacking, our comments demonstrate how, in matters of public safety, pole attachments, and universal service, the best way for the FCC to fulfill its various statutory and public interest mandates is to re-claim authority over broadband using Title II of the Communications Act.
The net neutrality rules created by the FCC’s 2015 Open Internet Order prevented broadband providers from blocking websites, throttling web traffic, or creating “fast lanes” only for those able to pay for prioritization. Millions of Americans expressed support for these rules by submitting comments with the FCC, and more than 80 percent of Americans consistently say they support restoring the protections the FCC adopted in the 2015 Open Internet Order.
Given that many potential commenters have staff working from home in difficult circumstances or are dealing with matters of immediate urgency, we hope that the FCC will accept late-filed comments from parties who are unable to meet today’s deadline.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“The court in Mozilla required the FCC to address how its Restoring Internet Freedom Order, which repealed the agency’s net neutrality rules and removed FCC jurisdiction over broadband, impacted public safety, pole attachments, and the Lifeline program. Instead of opening a new rulemaking proceeding, the FCC issued a Public Notice that fails to explain how the agency ultimately intends to proceed on this matter. Indeed, the agency’s questions in the Public Notice don’t even begin to address the range of issues presented to the Commission on remand by the D.C. Circuit Court.
“The FCC’s approach to the remands is severely lacking from an administrative law perspective. Nevertheless, it is clear that the best way for the FCC to fulfill its statutory mandates to promote the public interest is to classify broadband as a telecommunications service, which gives the agency clear authority to carry out its duties. In any event, the Administrative Procedures Act requires the FCC to actually confront the trade-offs of its policy choices instead of simply ignoring them.
“In the comments, we explain how the FCC should reassert its authority over broadband providers so that it can properly fulfill its responsibilities. In particular, as millions of Americans are staying home due to the pandemic, it has become clear that reliable, affordable broadband access is important to allow people to work and attend classes from home — and is even a matter of public safety. Title II of the Communications Act gives the FCC a full range of tools to address our nation’s broadband needs.”
You may view our remand comments here.