Restoring Internet Freedom; Bridging the Digital Divide for Low-Income Consumers; Lifeline and Link Up Reform and Modernization, 994-1021 [2020-25880]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Rules and Regulations]
[Pages 994-1021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25880]


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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.

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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, 
[email protected].

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 [email protected] 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

[[Page 995]]

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

[[Page 996]]

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

[[Page 997]]

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

[[Page 998]]

(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

[[Page 999]]

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

[[Page 1000]]

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

[[Page 1001]]

``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

[[Page 1002]]

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

[[Page 1003]]

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

[[Page 1004]]

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

[[Page 1005]]

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

[[Page 1006]]

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

[[Page 1007]]

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

[[Page 1008]]

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

[[Page 1009]]

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

[[Page 1010]]

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

[[Page 1011]]

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

[[Page 1012]]

``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 Sec.  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 Sec.  254(b) and 
allows itself to make funding directives that are consistent with the 
principles outlined in Sec.  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 Sec.  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

[[Page 1013]]

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 Sec.  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

[[Page 1014]]

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 Sec.  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

[[Page 1015]]

``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.

[[Page 1016]]

    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

[[Page 1017]]

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 [email protected] 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 [email protected].

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

[[Page 1018]]

(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

[[Page 1019]]

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

[[Page 1020]]

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

[[Page 1021]]

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 Sec.  1.2 of the 
Commission's rules, 47 CFR 1.2, this Order is Adopted.
    139. It is further ordered that, pursuant to Sec. Sec.  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

0
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.


0
2. Revise Sec.  54.101 to read as follows:


Sec.  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.

0
3. Amend Sec.  54.400 by revising paragraph (n) to read as follows:


Sec.  54.400   Terms and definitions.

* * * * *
    (n) Supported service. Voice telephony service is the supported 
service for the Lifeline program.
* * * * *

0
4. Amend Sec.  54.403 by revising paragraph (b)(1) to read as follows:


Sec.  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 Sec.  54.408, and charge Lifeline subscribers 
the resulting amount.
* * * * *

[FR Doc. 2020-25880 Filed 1-6-21; 8:45 am]
BILLING CODE 6712-01-P