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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunication service, and safeguard the rights of consumers. This authority is broad enough for the states to accomplish their universal service goals without forcing a burdensome federal regulatory regime i.e., Title II on broadband internet access service offerings. It is true that the text specifically references telecommunications services, but that reference is part of a larger list of areas where states can act as long as the state action is not inconsistent with section 254. Section 254 not only permits a state to work with telecommunications carriers in the state to support its own universal service programs, but it also allows states to adopt regulations to provide for additional definitions and standards to preserve and advance universal service within the state. . . .
As long as those state actions do not rely on or burden Federal universal support mechanisms, then a state is permitted to structure its programs in a way that it deems best to promote universal service.
92. Finally, while we are confident that our analysis of the statutory authority allows for the continued support of broadband internet access service through the Lifeline program, we would still reach the same conclusion on the classification of broadband internet access service that we did in the Restoring Internet Freedom Order even if a court were to conclude that the Lifeline program could not support broadband internet access service. As the Commission previously stated, a return to Title I classification better facilitates critical broadband investment through the removal of regulatory uncertainty and lower compliance burdens. Further, Title I classification allows for greater freedom to operate and serve customers in rural or underserved areas of the country.
Additionally, by reclassifying broadband internet access service as a Title I service the Commission sought to bring greater regulatory certainty to the market, removing a fog that stifled innovation. As such, we believe that the benefits of reclassification would outweigh the removal of broadband internet access service from the Lifeline program, were the sound statutory authority relied on today be found insufficient.

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D. The Order on Remand Is Consistent With the Administrative Procedure Act 1. The Commissions Notice and Comment Procedures Comported With the Administrative Procedure Act 93. We conclude that we have satisfied the notice and comment requirements of the Administrative Procedure Act APA in this proceeding.
We therefore reject arguments to the contrary. The Restoring Internet Freedom NPRM 82 FR 25568, June 2, 2017 sought comment on returning to the long-standing information service classification of broadband internet access service, and we did just that in the Restoring Internet Freedom Order.
The D.C. Circuits decision in Mozilla left the regulatory approach adopted in the Restoring Internet Freedom Order in place while remanding to us for further analysis the effect on certain public safety, pole attachment, and Lifeline universal service support issues. The Commission sought comment in the 2017 Lifeline NPRM on, among other things, the treatment of broadband internet access service under the Lifeline program irrespective of the regulatory classification of that service.
94. Agencies generally have broad discretion to choose the appropriate procedural response to a court remand, including whether and to what extent to conduct a new rulemaking proceeding.
In this Order on Remand, we do not reconsider or alter any aspect of the regulatory approach adopted in the Restoring Internet Freedom Order. To the extent that commenters contend that additional notice would be required to adopt an approach different than the one we take in this Order on Remand, those arguments are not applicable here.
Instead, we simply act in response to the Mozilla remand to explain our decision not to revisit that approach in light of the three discrete issues remanded by the D.C. Circuit. Thus, as a threshold matter, we conclude that the APA does not compel additional notice beyond that already provided. Indeed, except to the extent that we remove broadband internet access service from the list of supported services in our universal service rules, our Order on Remand procedurally could be analogized to a decision declining to initiate a rulemaking to revise the regulatory approach adopted in the Restoring Internet Freedom Order in light of the three remanded issues which need not be preceded by its own notice and comment procedures under the APA. Alternativelyand again, except to the extent that we modify our universal service rules to remove broadband internet access service from
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the list of supported servicesour response to the three remanded issues could be seen as, at most, an interpretive rule or policy statement.
95. Independently, we conclude that even if some form of additional notice and comment procedures were required here in light of Mozilla, our procedures on remand have been sufficient. The Bureau elected to refresh the record on issues implicated by the Mozilla remand to supplement the original Restoring Internet Freedom rulemaking record and the record of the 2017 Lifeline NPRM, consistent with similar actions taken by the Commissions Bureaus in many instances in the past. Nothing in the D.C. Circuits remand displaced the Commissions authority to conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice, nor to rely on Bureaus actions on delegated authority for the prompt and orderly conduct of its business. The Bureaus request for comment on the Mozilla remand was published in the Federal Register 85 FR 12555, March 3, 2020, hereinafter referred to as Restoring Internet Freedom Remand Public Notice PN. We also agree with numerous commenters that the issues to be addressed on remand were apparent, including from the Mozilla decision itself. Before turning to specific questions upon which the Bureau sought to develop the record further, the Restoring Internet Freedom Remand PN
began with requests for comment framed in terms that mirrored the scope of the D.C. Circuits remand in Mozilla.
Commenters criticizing the scope of the Restoring Internet Freedom Remand PNs request for comments on the remanded issues neglect that fact.
Nothing about the Restoring Internet Freedom Remand PN hindered commenters from understanding the supplemental information that the Commission would be considering or from raising the arguments they wished to raise in response to the remand. To the extent that some court precedent contemplates notice and comment in certain circumstances where an agency engages in new fact-gathering on remand, the objective is to ensure that parties have an opportunity to comment on any new factual information critical to the agencys decision whether to modify a rule on remand. While we consider the additionally-gathered information instead to supplement information in the original rulemaking record, even if it were critical information, we find that the objectives of that precedent have been satisfied here.

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