The Center for Democracy & Technology respectfully submits these comments in response to the Federal Communications Commission Wireline Competition Bureau’s Public Notice in which it seeks to refresh the record in light of the issues remanded to the Commission in Mozilla v. FCC.
In Mozilla v FCC, the United States Court of Appeals for the District of Columbia Circuit reviewed the FCC’s 2018 “Restoring Internet Freedom” Order (“Order”), in which it reclassified broadband internet access service (“BIAS”) as an “information service” and attempted to preempt state laws addressing net neutrality. The court vacated the portion of the Order that claimed authority to preempt state laws, and remanded the Order to the FCC because the FCC had failed to consider the Order’s implications for public safety, pole attachments, and the Lifeline program. Section 706(2)(A) of the Administrative Procedure Act (“APA”), provides that the court “shall hold unlawful and set aside” agency actions found to be arbitrary or capricious. The court found that the failure to fully consider the implications of the Order made the FCC’s actions arbitrary and capricious.
Although courts have occasionally remanded agency actions without vacatur, they do not excuse an agency’s failures, nor does remand without vacatur allow an agency to repair its failings with additional insufficient procedure. Instead, the agency must fulfill its original duties under its authorizing statute and the APA. In this case, the FCC must consider with an open mind the implications of every aspect of its Order with respect to the three issues it originally neglected: public safety, pole attachments, and the Lifeline program. It cannot do so by merely “refreshing the record.”
To provide adequate notice of its intended actions and to demonstrate its openness to alternative conclusions, the FCC must conduct its procedure anew, including consideration of public comments addressing the Commission’s conclusions with respect to public safety, pole attachments, and Lifeline. Without agency conclusions and the reasoning to support them, the public cannot provide meaningful feedback, and the agency cannot meet its requirements under the APA. After refreshing the record, the FCC must conduct a formal rulemaking in which it provides notice to the public of its conclusions and proposed actions, considers and addresses comments, and explains the reasoning behind its final conclusions.