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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
preempted from doing so in order to assert such jurisdiction. The California Public Utilities Commission expresses concern that ISPs may attempt to invoke the information services classification as a shield against a States jurisdiction to regulate pole attachment safety. It claims that overloaded poles and/or insufficiently maintained attachments have presented public safety issues. However, California currently regulates pole attachments at the state level so it is free to assert its authority over pole attachments by broadband-only providers under California law as it wishes without federal restriction under the Act.
66. We note further that section 224
has several gaps, such that the exclusion of broadband-only providers is not aberrant. Section 224 applies to specific categories of poles and, as noted above, only in applicable states. As noted above, poles owned by municipalities, electric cooperatives, railroads, and Federal and state governments are not covered under section 224, and so the adoption of the Restoring Internet Freedom Order does not affect the access of any ISP to such poles.
67. The Benefits of Reclassification Outweigh Any Pole Attachment-Related Drawbacks. Ultimately, the record supports our determination that the reclassification of broadband internet access service as an information service has facilitated rather than inhibited new technologies and business models, despite the rare potential for pole attachment access challenges. To this end, given the overall benefits of Title I reclassification, we find that it would be counterproductive to upend our light-touch regulatory framework for broadband internet access service because of speculative concerns that at most would impact a small minority of ISPs and consumers.
68. First, there is no question that the overall benefits of reclassification outweigh the limited drawbacks that stem from broadband-only ISPs losing their section 224 pole attachment rights.
As we have discussed, numerous commentersincluding broadband-only ISPsassert that Title I reclassification has promoted robust infrastructure investment and deployment in broadband networks and facilities.
Indeed, the Mozilla Court upheld our cost-benefit analysis in the Restoring Internet Freedom Order, stating that we made a reasonable case that our light-touch approach is more conducive to innovation and openness than the Title II Order.
69. Second, the regulatory certainty provided by the Commissions actions
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in the Restoring Internet Freedom Order create incentives that likely help foster substantial investment in new broadband infrastructure, including poles, and increased broadband deployment. For instance, a WISPA
member in Minnesota has invested $1.5
million dollars to expand its network by adding 12 new towers since January 2018 and this expansion has allowed the company to fully cover two additional counties in Minnesota. We agree with the majority of commenters that these benefits outweigh the loss of section 224 protections for the very limited number of broadband-only providers that do not offer a cable or telecommunications service over the same network as they provide broadband internet access service.
Indeed, despite a membership including broadband-only providers, WISPA
emphatically confirms our position that there is no doubt that the Restoring Internet Freedom Orders abandonment of burdensome Title II regulations for broadband internet access service providers is of paramount importance in promoting deployment of new service and enhancing competitive offerings. If it were actually a choice between the world of Title II regulation and the lighter touch of Title I regulation, with no pole attachment protections for broadband-only providers, WISPA
would choose the latter paradigm.
70. We decline at this time to address requests in the record to reinterpret section 224 or rely on other sources of authority to extend the availability of access rights under section 224 to broadband-only providers. A number of commenters propose sources of Commission authority to extend section 224 to cover broadband-only ISPs. For instance, WISPA proposes to directly apply section 224 or rely on ancillary authority. Specifically, WISPA contends that the plain text and objective of section 224, as well as provisions such as sections 157 and 257 of the Act, and section 706 of the 1996 Act, is to level the playing field, promote competition, expand the publics access to advanced services or ensure that customers have access to service at just and reasonable rates. According to WISPA, we could also exercise our ancillary jurisdiction under section 154 or rely on section 706
as our statutory authority to extend pole access and rate rights to broadband-only providers. Other commenters offer general support for us to extend section 224 to cover broadband-only providers.
Alternatively, Southern Company proposes to unwind many of the incumbent-friendly pole attachment regulations adopted by the Commission
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during the past decade, in order to allow broadband-only providers to compete on a more level regulatory playing field. For the purposes of this Order on Remand, we find that even assuming we lack authority to extend section 224 to cover broadband-only providers, the overall benefits of reclassification outweigh the limited drawbacks. Parties arguing in favor of extending pole attachment rights to broadband-only ISPs are free to file a petition for rulemaking or petition for declaratory ruling, which we then may consider with the benefit of a full and focused record on the topic.
C. Lifeline Broadband Services 71. The D.C. Circuit in Mozilla directed us to consider on remand the statutory basis for broadband internet access services inclusion in the Lifeline program. After such consideration, we further explain our finding that we have legal authority under section 254e of the Act to distribute Lifeline support for broadband service provided by ETCs.
That authority is undergirded by the clear intent of Congress that universal service efforts should increase access to advanced services, and the record in this proceeding offers broad support for our conclusion.
1. The History of Funding Broadband Services Through the Universal Service Fund 72. In the 2011 USF/ICC
Transformation Order 76 FR 73830, Nov. 29, 2011, the Commission adopted comprehensive reforms to modernize the Universal Service Fund USF or Fund to implement Congresss goal of promoting ubiquitous deployment of, and consumer access to, both traditional voice calling capabilities and modern broadband services over fixed and mobile networks. As part of this modernization effort, the Commission leveraged the funding disbursed through the Funds high-cost mechanism to encourage the deployment of broadband-capable networks, even though broadband internet access service was at the time classified as an information service. The Commission stated that by referring to facilities and services as distinct items in section 254e for which federal universal service funds may be used . . . Congress granted the Commission the flexibility not only to designate the types of telecommunications service for which support would be provided but also to encourage the deployment of the types of facilities that will best achieve the principles set forth in section 254b and any other universal service principle that the Commission may
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