Ever since the Federal Communications Commission (FCC) approved the Restoring Internet Freedom Order (RIFO) in December 2017, which overturned the 2015 Open Internet Order (OIO) proponents of net neutrality have been bemoaning and belittling the decision.  But that criticism rings hollow after the internet thrived following the removal of the restrictions that existed under the OIO which was the essence of net neutrality.

When the U.S. Court of Appeals for the District of Columbia Circuit (the Court) upheld the RIFO in Mozilla Corp. v. FCC, the Court raised three issues in its remand regarding the impact of the RIFO: the effect of the RIFO on public safety communications; whether internet service providers (ISPs) would be adversely affected by the loss of Section 224 protections on pole attachments; and, if broadband could still be provisioned by providers for the Lifeline universal service program.  Net neutrality proponents believed they had an opening to undermine the underlying decision based on these questions.

On October 5, FCC Chairman Ajit Pai set the tone in his blog post for the agency’s upcoming October 27, 2020 meeting.  On October 6, 2020, the FCC released the white copy edition of the Remand Order, which stated that for each of the three issues raised by the Court, “there is no basis to alter the Commission’s conclusions in the Restoring Internet Freedom Order.”  Once adopted, the Remand Order will complete the RIFO and ensure that the internet will remain free from the heavy burden of the OIO, which treated ISPs like common telephone carriers under Title II of the Communications Act of 1934.

The Remand Order white copy explains that the innovations generated from the RIFO’s light-touch approach to regulating broadband services have increased public safety communications opportunities, in part to compete with the First Responder Network Authority (FirstNet), including offerings by Verizon and U.S. Cellular.  Investments being made by ISPs and other communications providers following adoption of the RIFO will also improve public safety services communications.

With respect to the pole attachment issue, the Remand Order white copy notes that the Supreme Court held in NCTA v. Gulf Power Co. that “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.”  Therefore, the FCC concluded that the only telecommunications providers whose pole attachment protections could be adversely affected by the RIFO would be the 4 percent of providers that offer broadband-only services.

Finally, for the Universal Service Lifeline program, which provides discounted communications including wireline, wireless, and broadband services to low-income Americans, the white copy of the Remand Order notes that Section 254(e) of the Communications Act of 1934 allows the FCC to support broadband services provided by ISPs who also offer voice services, citing the “intent of Congress that universal service efforts should increase access to advanced services.”  Broadband services were included as part of a pilot program under Lifeline reforms adopted by the agency in the 2012 Lifeline Order.  This program, established prior to the imposition of the 2015 OIO, demonstrates that regardless of classification under Title I or Title II, broadband services were considered advanced services that could be included in the complement of services supported by the Lifeline program.

While some doom and gloom naysayers have tried to use this bit of housekeeping at the FCC to try and convince the agency to reverse its well-considered reversal of the OIO and reinstall net neutrality, it is clear both before and after the pandemic that private sector investments in broadband deployment and providers’ commitments to Keep Americans Connected have been of immense benefit to the entire country, and that the RIFO decision was correct.  The FCC’s response to the Remand Order properly would allow the agency to stay the course.