Stepping Back onto the Escalator: Answering the D.C. Circuit’s Remand of the Pole Attachment Question

In the recent case of Mozilla v. FCC, the D.C. Circuit evaluated the legal legitimacy of the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (“RIFO”). The question at bar was the agency’s decision to reverse the imposition of Title II common carrier regulation on the Internet dictated by the Obama-era 2015 Open Internet Order and to return the classification of broadband Internet access services back to a Title I “information” service. After review, the D.C. Circuit agreed. But while the court upheld the Commission’s decision to place broadband back under the umbrella of Title I, the court also held that by deliberately placing “broadband outside of its Title II jurisdiction” the Commission had essentially abdicated all legal authority — express and ancillary — over information services. The D.C. Circuit’s “statutory abdication” logic created a ripple effect across a wide variety of legal action items the Commission sought to resolve in its RIFO. One of these issues was the question of who is eligible to take advantage of the pole attachment regime contained in Section 224 of the Communications Act, ultimately remanding the issue to the FCC for further consideration. This paper reviews the court’s reasoning and sets forth some suggestions about how the Commission should address the court’s concerns on remand. In particular, the paper explains that conspicuously absent from the Majority’s pole attachment discussion is the recognition that that prior to the 2015 Open Internet Rules broadband-only carriers were foreclosed from the statutory regime under Section 224. Thus, the correct legal question on remand is not whether the RIFO deprived broadband-only carriers of inalienable “statutory rights” as the court suggests, but rather whether these carriers had valid reliance interests that were harmed by the Commission’s choice to reverse the 2015 Open Internet Order two years later? According to the D.C. Circuit’s own opinion in Mozilla, the answer to that question is a resounding “No.”