Je veux savoir à propos de…

jbell on DSKJLSW7X2PROD with RULES

1016

Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
96. We also find that there was adequate time for participation by commenters. Commenters expressing concern about the timing of the comment period focus specifically on the development of the record related to public safety issues. Commenters do not identify any inadequacy in the comment period provided in the Restoring Internet Freedom Remand PN, which provided a full opportunity for commenters to raise public safety concerns and which the Commission is considering in responding to the Mozilla remand. With respect to the Restoring Internet Freedom Remand PN
requesting comment to supplement the record in response to the remand, the process was appropriate, as well. As USTelecom observes, the Commission published the Notice on March 3, 2020, more than a month and a half before comments were due. This comment cycle included an extension of time to enable state, county, and municipal governments to be able to respond adequately to the issues raised in the Public Notice relating to how the Commissions action affects public safety. This provided ample opportunity to submit information in response to the Restoring Internet Freedom Remand PN. To the extent that certain parties belatedly sought a further extension, we agree with the Bureau that the request was neither timely nor provided evidence that further extension of time was warranted.
97. The record also does not persuade us that there are additional arguments or information that interested parties in fact would have raised under a different comment process that they were unable to raise in the record for consideration in this proceeding. We reject arguments in response to the Restoring Internet Freedom Remand PN that reiterate concerns that certain commenters efforts to address the COVID19
pandemic limit their ability to fully participate even under the extended comment cycle. Those arguments are not materially different from the arguments the Bureau considered and appropriately rejected in the Further Extension Denial Order. Further, in addition to the formal comment process, parties were able to make ex parte filings, as well. Insofar as certain parties sought a further 60-day extension of the already once-extended comment period, we note that substantially more than 60
days have passed since that comment deadline, during which time they have been free to raise their arguments in ex parte filings, which are considered by the Commission as part of the record in this proceeding.

VerDate Sep<11>2014

16:55 Jan 06, 2021

Jkt 253001

98. We reject the claims of some commenters that the U.S. Supreme Courts recent decision in DHS v.
Regents of the Univ. of Cal. support their prior contentions that the Commission must have a formal Notice of Proposed Rulemaking NPRM as a prelude to issuing any response to the remand by the Mozilla Court. Contrary to those claims, DHS v. Regents of the Univ. of Cal. does not specify that a new, Commission-level Notice of Proposed Rulemaking would be required here. To the extent that DHS v.
Regents of the Univ. of Cal. speaks to the procedures to be followed when an agency takes new action to provide additional explanation on remand, it does not adopt any one-size-fits-all approach, but merely observes that the procedures followed must be whatever otherwise is required for the relevant action. In contrast to the posture in that casewhere DHSs prior decision was vacatedthe D.C. Circuit in Mozilla remanded without vacatur, leaving the Restoring Internet Freedom Order in place, and in this Order on Remand we do not modify or alter the regulatory approach adopted there. Consequently, whatever procedures theoretically might be required for DHS in response to DHS
v. Regents of the Univ. of Cal., it does not follow that a new, Commission-level rulemaking would be required here.
Independently, as discussed above, we also find that even assuming arguendo that some manner of additional notice and comment were required, our procedures here have been adequate.
2. The Commission Thoroughly Considered the Relevant Issues on Remand 99. In the substantive sections of this Order we thoroughly analyze the effects of the Restoring Internet Freedom Order on public safety, pole attachments, and Lifeline consistent with the D.C.
Circuits remand, and explain why those considerations do not persuade us to depart from the regulatory approach we adopted in that Order. This included addressing the thousands of public comments by identifying which ones were responsive to the three specific issues subject to the remand and analyzing those responsive arguments here. Our action satisfies both the Mozilla remand and the APAs reasoned decision-making requirements. We therefore reject arguments that the Commissions analysis of the remanded issues has failed, or will fail, the reasoned decision-making requirements of the APA.
100. Our analysis in the Order on Remand also demonstrates that we remained open-minded regarding the
PO 00000

Frm 00084

Fmt 4700

Sfmt 4700

issues remanded in Mozilla. In Little Sisters of the Poor, the Supreme Court recently declined to evaluate the final rules at issue there under the openmindedness test that had been used by the Third Circuit given that the text of the APA provides the maximum procedural requirements that an agency must follow in order to promulgate a rule. The Court concluded that the open-mindedness test violates the general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA. To the extent that commenters seek to advance the same basic openmindedness test here, the Supreme Courts decision provides an additional reason why it is unavailing. But in any case, we independently conclude that we did, in fact, remain open-minded for the reasons discussed in the text. For one, the cases cited by commenters expressing concern in this regard involved scenarios where the court was evaluating the adequacy of the original notice or opportunity for comment rather than where, as here, the agency is responding to a courts remand to consider certain specific issues in evaluating whether they warrant a change in its prior decision. Indeed, rather than evidence that the Commission had a closed mind on the remanded issues as some commenters contend, the solicitation of comments in the Restoring Internet Freedom Remand PN reveals our willingness to give full consideration to those issues. In contrast to the Bureaus requests for comment in the Restoring Internet Freedom Remand PN, the district court in Intl Snowmobile Mfrs. Assn v. Norton, confronted a situation where agency decisionmakers made definitive statements about the outcome before the environmental review process was complete. A Bureau-level Public Notice requesting comment does not similarly represent definitive statements about the outcome the full Commission will reach in this proceeding. Our analysis likewise demonstrates that we remained openminded in that regard, but were not persuaded to depart from our regulatory approach in the Restoring Internet Freedom Order on the basis of those considerations.
101. We also have no obligation in this proceeding to re-open issues from the Restoring Internet Freedom Order that were not remanded by Mozilla.
Some commenters quote language from DHS v. Regents of the Univ. of Cal., that an agency supplementing its original reasoning must deal with the problem
E:FRFM07JAR1.SGM

07JAR1