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FCC takes another swing at 2018 net neutrality order in response to court ruling

The U.S. Federal Communications Commission attempted to address the remaining contested elements of its 2018 order overhauling net neutrality regulations at its Oct. 27 open meeting.

The 2018 order, known as the Restoring Internet Freedom order, reclassified broadband as a Title I service under the Communications Act, giving the FCC less authority over internet service providers. It also eliminated agency net neutrality rules implemented during the Obama administration that prohibited network operators from blocking or throttling legal internet traffic or prioritizing certain traffic in exchange for payment.

However, in an appeal led by internet company Mozilla Corp., petitioners argued that the FCC failed to provide a sound legal justification for eliminating the rules and did not provide an adequate analysis of the implications of the repeal, especially regarding first responders.

In October 2019, a federal appeals court largely upheld the 2018 order, with two exceptions. First, it vacated a blanket federal preemption of state laws. Additionally, the court remanded back to the agency three other separate issues pertaining to public safety, pole attachments and the impacts of broadband reclassification on the agency's Lifeline program, which provides a discount on wireline and wireless services for certain Americans with low incomes.

A new order

On Oct. 27, the Republican-led commission responded to the remand by voting along party lines to find that the 2018 order does in fact promote public safety, facilitate broadband infrastructure deployment and allow the agency to provide Lifeline support for broadband internet service.

"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," wrote the agency in a public draft of the order approved Oct. 27.

One concern expressed in the court case was that the order would eliminate broadband's inclusion in the Lifeline program, as Congress limited Lifeline support to Title II telecommunications services, or common carriers. Because the 2018 order classified broadband as a Title I information service, petitioners argued it was no longer eligible for the program.

But in a public draft of its new order, the agency noted that broadband providers also generally provide voice service, which remains a Title II service. Thus, it can provide Lifeline support to any broadband provider that also provides common carrier voice services.

FCC Chairman Ajit Pai echoed this sentiment in Oct. 27 remarks, saying the RIF order does not undermine the agency's statutory authority to include broadband in the Lifeline program.

Democratic FCC Commissioner Geoffrey Starks pushed back, arguing that the Oct. 27 order does not address the issues detailed in the remand.

"The D.C. Circuit remanded the RIF Order because it found insufficient the majority's claim that deregulation will benefit, or at least not harm, public safety, pole attachment access, and the Lifeline program," said Starks. "The Remand Order claims to address these deficiencies, but in reality, it still falls well short," he said.

5G Fund

A second item approved by the agency is an order that will establish the "5G Fund for Rural America." The fund will be distributed through a two-phase reverse auction, and it will target those areas that do not currently have an unsubsidized provider of either 4G LTE or 5G mobile broadband. The auction will also rely on "new, granular, mobile coverage maps" to determine eligible locations.

The agency says the order would adopt a 10-year term of support and a budget of $9 billion.

In a blog post earlier this month, Pai said the fund would "bring voice and 5G broadband service to rural areas of our country that would be unlikely to see the deployment of 5G-capable networks without subsidies."

Both Democrats on the commission dissented in part to the item.

White spaces

The commission also unanimously approved a report and order aimed at opening up the spectrum between television broadcast channels, known as white space spectrum, for wireless broadband connectivity in rural and underserved areas.

In his blog post earlier this month, Pai said the order expands the ability of white space devices to "provide broadband coverage in rural and unserved areas while still protecting television broadcasters in the band."

Microsoft Corp. has fought for years to get white space spectrum opened up for wireless broadband, while the National Association of Broadcasters has cautioned against interference. The current order is broadly supported by both sides, though in the weeks leading up to the vote, Microsoft asked for small changes that broadcasters have opposed.

After the vote, NAB spokesperson Ann Marie Cumming thanked the agency for approving an order that would "provide greater flexibility for white spaces operations without undermining the fundamental principle that these operations must not cause interference to licensed services, such as radio and TV stations."