Mozilla Remand Issues Not Considered Heavy Lifts for FCC by Title I Advocates
Broadband-only providers' statutory right to pole attachments isn't a significant issue because there are so few such providers and it's easy enough for them to expand their offerings beyond that to get pole attachment rights. That's according to a Federalist Society panel Monday about the U.S. Court of Appeals for the D.C. Circuit's Mozilla remand. There were no pro-Title II panelists, and such allies didn’t comment immediately. That title is part of the Telecom Act.
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Broadband lawyer Russell Hanser of Wilkinson Barker said the court seemed to assume in last fall's decision (see 1910010013) that broadband-only providers have long had pole attachment statutory rights, when they did only with the 2015 net neutrality order. He said if the D.C. Circuit decision really hurt broadband providers, they wouldn't be en masse supporting it. If there were more broadband-only providers, they could either seek legislative change or negotiate access, he said.
Broadband service clearly qualifies under Lifeline, Hanser said, citing the FCC's 2011 universal service changes not precluding money for information services like broadband. Added NCTA outside counsel Matthew Brill of Latham and Watkins, before the 2015 order, Lifeline support for broadband was allowed, so a return to that status quo doesn't prevent broadband support.
Brill said the bigger issue is whether broadband-only providers can get Lifeline support. If not, he said, there's no evidence that's a big issue since most consumers want voice along with broadband so it's easy enough for a provider to offer both to get the government funds. There are calls for the FCC to revamp the program, Brill said, but the remand isn't the appropriate venue.
On the public safety issue remand, the FCC just needs to make clear the 2018 order only benefited public safety, panelists said. USTelecom Vice President-Policy and Advocacy Kristine Hackman said the specialized services public safety receives typically aren't broadband internet access services anyway, so they aren't subject to the net neutrality regime. Even if they are, she said, the light-touch regulatory structure outweighs any costs of that approach and there's been no concrete example of a threat to public safety. Echoed Brill, there haven't been any harms that demonstrate a need for Title II regulations called for by public safety advocates.
That some judges in the D.C. Circuit decision deferred to the FCC but said the Supreme Court would likely find broadband to be a telecom service could be seen by Title II advocates as an invitation to appeal to the high court, Hanser said. Cert petitions are due in July, panelists said. Hanser predicted someone will file for cert.
Brill said stayed litigation on California's net neutrality regulations (see 1810300055) will move forward again if there's no Mozilla cert petition, though enforcement of the rules could be stayed by a preliminary injunction. Enforcement of the law also is stayed (see 1810260045). A cert petition, meanwhile, would mean the stays of both litigation and enforcement would continue, he said.