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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
evidence emerge we have authority to act consistent with the regulatory approach to broadband internet access service adopted in the Restoring Internet Freedom Order. As we held in the Restoring Internet Freedom Order, the Twenty-First Century Communications and Video Accessibility Act of 2010
CVAA directed the Commission to enact regulations to prescribe, among other things, that networks used to provide advanced communications services ACS, which includes electronic messaging and interoperable video conferencing services, may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through . . . networks used to provide ACS.
50. We also are not persuaded by commenters claims that ISP conduct will lead to violations of laws establishing protections for persons with disabilities. As a threshold matter, the nexus between those concerns and public safety issues or any other remanded issue is far from clearand to the extent commenters raise issues lacking a nexus to the remanded issues, we reject them as beyond the scope of this proceeding. Independently, the record does not demonstrate that the regulatory approach adopted in the Restoring Internet Freedom Order will lead to the violation of the laws cited by commenters. Commenters express vague concerns about the potential violation of section 225 of the Act, which calls for the Commission to establish Telecommunications Relay Services TRS to provide certain persons with disabilities communications services that are functionally equivalent to voice telephone service. The Commissions rules define the standards that providers subject to section 225 must meet.
Although some TRS services are carried via broadband internet access service, commenters do not explain how the regulatory approach in the Restoring Internet Freedom Order will preclude providers subject to section 225 from complying with the Commissions rules implementing section 225. We also see no basis in this record to conclude that our policy discretion under section 225
of the Act to revise our TRS rules to reflect evolving standards over time would be materially affected under the regulatory approach adopted in the Restoring Internet Freedom Order.
51. Commenters arguments are also flawed insofar as they focus not on violations of laws by the ISPs themselves but on the theory that ISPs conduct might make it harder for third parties to comply with their obligations under laws protecting individuals with
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disabilities. For one, the record does not demonstrate that such effects on third party compliance are likely.
Independently, we are not persuaded that such speculative concerns would provide a sound basis upon which to revisit the regulatory approach of the Restoring Internet Freedom Order. Even assuming arguendo that certain regulation of ISPs could make it easier for third parties to comply with those third parties statutory obligations, the net result would be to shift compliance burdens away from the parties actually subject to the statutory duties and onto the ISPs. In effect, such regulation would require ISPs to implicitly subsidize the compliance costs of the entities actually subject to the statutory duties. We are not persuaded that would be an appropriate basis for regulation.
52. Finally, we are unpersuaded by BBICs assertion that provider conduct no longer prohibited by the regulatory approach in the Restoring Internet Freedom Order might violate the Americans with Disabilities Acts ADA
prohibiton on interference with rights granted under the ADA statute or raise state law tort issues such as claims for prospective interference with business advantage. BBIC does not explain why the theoretical potential for a providers conduct to violate any such requirements is, in itself, a reason to return to the regulatory approach of the Title II Order. Not only is the potential for violations theoretical, but BBIC has not sufficiently articulated a potential legal violation. We thus reject BBICs assertion that the FCC must explain its analysis of whether the ADA
interference statute is violated by ISP
demands for payment for fast internet access for additional payments or at risk of slowdown of the data or vital services including telemedicine for persons with disabilities. In other words, even assuming arguendo that certain provider conduct already is prohibited by a law like the ADAs prohibition on interference, the record does not reveal any public safety benefit from the Commission separately and independently regulating broadband internet access service providers simply to ensure they comply with obligations they already otherwise are subject to by law. Finally, the record does not reveal any additional public safety concerns that would arise from the speculative claimed violation of these laws, independent of the concerns about the public safety effects of ISPs pricing and network management practices that we already considered and rejected above.
Indeed, one concern raised by the California PUC appears even further
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removed, insofar as it expresses concern about the loss of copper wires which carry 911, closed captioning and TTY
services. Neither the definition nor classification of broadband internet access service is tied to the physical mediumcopper vs. fiberover which it is provided, however, nor does the California PUC give any indication of how the Title II Order would have addressed its concerns about the loss of copper network facilities better or at all.
53. Speculative HarmCritical Infrastructure. We disagree that the elimination of the internet conduct rules will impact the safety and reliability of critical infrastructure sectors, including electric, gas, water, and communications utilities, which in turn negatively impacts public safety, as claimed by some commenters.
Commenters cite various federal laws or statements of policy regarding critical infrastructure in general or the use of the internet and other communications technologies as part of those sectors. In some cases, the cited materials appear to adopt principles or requirements specific only to the implementation of those statutes or involve communications services generally in a way that extends far beyond the scope of this proceeding. Nor is our analysis altered by references to state laws making the interference with administration of government an offense ranging from a civil to a criminal misdemeanoror felony. The record is not sufficiently developed on these legal standards and their potential application to any provider conduct that theoretically could raise public safety concerns for us to formally opine on them here, and in any case BBIC does not explain why the theoretical potential for a providers conduct to violate any such requirements is, in itself, a reason to return to the regulatory approach of the Title II Order.
The California PUC also cites its efforts to adopt a number of emergency customer protection measures to support residential and small business customers of utilities affected by disasters, stating that these come in the aftermath of a disaster and involve what it asserts without elaboration are vital communications services. The actual nexus between the California PUCs customer protection measures and protection of critical infrastructure or public safety more generally is unclear on this record. And the California PUCs concern in this regard appears to center on arguments certain providers made objecting to its regulations, among many other grounds, on the basis of the
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