Great news everyone, net neutrality is back! Of course, I’m being sarcastic. Since Congress will not deal with what is clearly an issue for it to solve, we, the public, are forced to face it again. This time, the FCC is seeking comments on the three outstanding issues the DC Circuit Court remanded back to it for further review when it gave the green light to much of the Commission’s Restoring Internet Freedom Order (Order).

In its opinion, the Court found that the FCC (1) failed to consider the ramifications for public safety of permitting carriers to prioritize Internet traffic; (2) failed to explain how an information service classification of broadband Internet access traffic would cover pole attachments, which today are regulated as Title II telecommunications services by the 1996 Telecommunications Act; and (3) failed to explain how reclassification as an information service would not eliminate the statutory basis for broadband’s inclusion in the Lifeline Program, since Lifeline includes only telecommunication service.

Industry and public comments are due on March 30, 2020 in Docket 17-108. Here is more specific information about the questions the Commission is seeking answers.

Public Safety - The Court found that the FCC completely ignored the implications of traffic prioritization on public safety. It used the example of firefighters in California unable to communicate with each other and get information from the Internet because their traffic was blocked. The Commission asks whether network improvements made possible by paid traffic prioritization could benefit public safety applications—for example, by enabling the more rapid, reliable transmission of public safety related communications during emergencies? It also tries to put the onus on broadband providers by asking whether they have policies in place to facilitate public safety. Finally, the Commission asks the key question. How can it assure public safety without reclassifying broadband as a telecommunications service and prohibiting paid prioritization of traffic?

Pole Attachments – The Commission requests comments on how pole attachments are impacted by its decision to classify broadband as a Title I information service. To what extent are pole attachments subject to FCC authority in states that currently regulate the pole attachments of cable or telecommunications services covered by section 224 of the Telecommunications Act? What impact would the inapplicability of section 224 to broadband-only providers have on their access to poles? Have pole owners, following the Order, “increase[d] pole attachment rates or inhibit[ed] broadband providers from attaching equipment”?

Lifeline – The DC Circuit remanded the Lifeline issue back to the FCC for its complete failure to explain how broadband could be included in the Program when it is no longer classified as a telecommunications service. The Commission asks whether its 2017 conclusion that it has the authority under Section 254(e) of the Telecommunications Act to provide Lifeline support to Eligible Telephone Companies that provide broadband service over facilities-based broadband-capable networks that support voice service, is correct? Moreover, this conclusion assumes that this legal authority does not depend on the regulatory classification of broadband Internet access service and, thus, ensures the Lifeline program can include broadband service. If Section 254(e) does not provide this authority, are there other parts of the Act that confer such authority on the Commission?

Some parties are already raising the possibility that this comment period will be a backdoor way to reclassify broadband as a Title II telecommunications service. That is highly unlikely. These remanded issues are limited and do not impact the Court-approved overall classification of broadband as an information service. If the Commission logically explains its rationale on these issues, the Court is required to approve such explanations as not being “arbitrary or capricious,” under the Chevron Doctrine, no matter how much it might disagree. Those seeking to classify broadband have three viable paths: A new Congressional Law, a Supreme Court decision, or a Democrat president.

Consumer advocates also believe that if the public sends in thousands of comments this Commission will be persuaded to change its mind and reinstate the net neutrality rules of the Obama era. That is complete nonsense. Public comments have no legal authority over the FCC, and once it makes up its mind on an issue, the Commission rarely cares what the public comments advocate. The three Republican Commissioners, led by Chairman Pai, are ultra-strong proponents of limited regulations. Therefore, public comments have no chance to sway their opinions on net neutrality.