Editor’s Column

The first leg of the FCC’s plan involves adding spectrum to enhance the capacity of wireless networks. The second leg involves updating infrastructure policy to reduce barriers to the deployment of 5G services like the small-cell deployment orders that were the subject of a prior Infrastructure article. The third leg involves modernizing outdated regulations like the business services rules that also were the subject of a prior Infrastructure article. Mozilla involved challenges to the FCC’s 2018 order, which falls into this third prong of the FCC 5G Fast Plan due in part to its elimination of Title II common carrier regulation of wireless broadband services.

In Net Neutrality: Take 4!, Joe Cosgrove creatively traces the history of the FCC’s net neutrality regulations against the backdrop of a long-running cinematic series of dramatic episodes arising out of the upheavals caused by the current convergence of the media and telecom landscapes. The article assesses the direct impact of Mozilla, which affirms as a reasonable policy choice the 2018 FCC Order’s reclassification of broadband internet access service as an information service outside the scope of Title II common carrier regulation while partially remanding three specific substantive issues and vacating the general preemptive directive of the 2018 Order.

The article first describes the basis for treating broadband internet access as an information service under the Supreme Court precedent in Brand X and under the statutory definitions, particularly as they relate to functions such as domain name services and data caching. The article then explains how Mozilla upholds under Chevron the FCC’s reliance on transparency disclosure obligations, rather than prescriptive regulatory rules (like blocking, throttling, paid prioritization, and general conduct proscriptions), to maintain an open internet. It then discusses the three specific FCC failures to address the impact of the decision on key telecom policies: public safety, as reflected in the section 151 of the 1934 Communications Act; pole attachments, due to their importance to the pro-competition framework of the 1996 Federal Telecom Act; and the lifeline program, due to the importance of universal service under both acts. Finally, the article assesses the invalidation of the FCC’s attempt to broadly preempt any state or local regulation the FCC could have adopted, even absent any conflict. Mr. Cosgrove notes this aspect of the order is likely to ensure that there will be future episodes of this engaging cinematic series.

We hope you enjoy this issue. If you have suggested topics for future issues or would like to submit an article for consideration, please contact me at [email protected].