The Republican-majority Federal Communications Commission took another vote against net neutrality rules today in its last meeting before a presidential election that could swing the FCC back to the Democratic Party.

Today’s vote came a year after a federal appeals court upheld FCC Chairman Ajit Pai’s repeal of net neutrality rules and deregulation of the broadband industry. Though Pai was mostly victorious in the case, the judges remanded portions of the repeal back to the FCC because the commission “failed to examine the implications of its decisions for public safety,” failed to “sufficiently explain what reclassification [of ISPs] will mean for regulation of pole attachments,” and did not address concerns about the effect deregulation would have on the FCC’s Lifeline program, which subsidizes phone and Internet access for low-income Americans.

The FCC approved its response to the court’s remand instructions in a 3-2 vote today but didn’t make any significant changes. “After thoroughly reviewing the record compiled in response to its request for additional comment on these issues, the FCC found no basis to alter the FCC’s conclusions in the Restoring Internet Freedom Order,” the commission said in its announcement. “The Order on Remand finds that the Restoring Internet Freedom Order promotes public safety, facilitates broadband infrastructure deployment by Internet service providers, and allows the FCC to continue to provide Lifeline support for broadband Internet access service.” A draft version of the decision is available here.

Democrats dissent, predict court failure for Pai

FCC Democrats Jessica Rosenworcel and Geoffrey Starks dissented today, saying the FCC majority didn’t provide a good enough justification for sticking with the repeal as is. Rosenworcel called the order “a set of three cobbled-together arguments designed to tell the court to go away, the public that we are not interested in their opinion, and history that we lack the humility to admit our mistake.” Starks said he doubts that the FCC’s response to the remand will satisfy judges at the US Court of Appeals for the District of Columbia Circuit, which could take up the case again if the FCC faces another lawsuit.

The FCC majority claimed that “regulatory certainty,” meaning deregulation, results in increased innovation and investment that “will enhance public safety.” The FCC also said the repeal “is unlikely to harm public safety communications” and that any impact “would be limited because broadband Internet access service, while important, is only a part of the broader public safety communications ecosystem.” While the FCC gave up its Title II authority over broadband providers, the commission claims that antitrust and consumer-protection laws enforced by other regulators will ensure that public safety agencies have appropriate access to communications services.

That wasn’t good enough for Commissioner Rosenworcel. She said:

The very first sentence of the Communications Act tasks the FCC with “promoting safety of life and property.” In other words, public safety is fundamental to our mission. But the agency disregards it here and sidesteps the concerns of the court by insisting that removing net neutrality increases network investment, which will accrue to the benefit of public safety. The evidence for this is less than clear. But more importantly, it doesn’t adequately explain why this is the case when lives are on the line. Nor does it detail in any meaningful way how first responders will manage when emergency communications are throttled or blocked. This concern is not just theoretical. Among those opposing the FCC’s rollback of net neutrality are firefighters who found their service throttled when they were responding to a raging blaze. But here their fears are given short shrift. The agency simply concludes that the elimination of net neutrality is worth the risk, even when lives are at stake. This is irresponsible.

Pai argued that “there is no evidence the Restoring Internet Freedom order has harmed public safety. By employing a light-touch, market-driven approach to regulation, broadband providers are better able to build stronger and more resilient networks that enhance public safety, including through services like next-generation 911.”

If Democratic nominee Joe Biden defeats President Trump in the presidential election, he’ll be able to appoint a chair to replace Pai and form a Democratic majority that could reinstate net neutrality rules and Title II regulation of broadband providers.

ISPs lost legal protections

The FCC’s reclassification of broadband, changing it from a common-carrier telecommunications service to an information service, removed some legal protections for Internet providers. Starks said this is a problem for broadband-only providers that need access to utility poles to expand their networks, and he added that the FCC remand ignores this:

The Remand Order acknowledges that access to these poles is a “competitive bottleneck,” and observes that cable operators, wireless Internet service providers and others have filled the record with stories about the difficulties in obtaining reasonable access to poles. Nevertheless, the Remand Order finds that reclassification does not significantly limit new entrants to the marketplace, and in an exercise in circular reasoning, simply restates the RIF [Restoring Internet Freedom] Order’s claim that most ISPs will remain entitled to FCC protection because their broadband service will come bundled with Title II or cable services. As for broadband-only ISPs, the Remand Order blithely suggests that they could receive FCC protection if they simply began providing video or telecom services, notwithstanding their own business plans or financial circumstances… I fail to see how such a response will satisfy the DC Circuit.

There’s a similar problem for companies that provide broadband service to poor people with subsidies from the FCC’s Lifeline program, Starks said. “In response to the DC Circuit, the majority engages in a strained legal reading to find that a provider may continue to receive Lifeline support for broadband service as long as that provider remains an Eligible Telecommunications Carrier offering telecom services to some customers,” Starks said. “This would be tricky on its own terms, but voice service in the Lifeline program will be phased out next year. What will happen to Lifeline providers who may not have any remaining voice customers after the phase-out?”

The FCC’s majority decision conceded that Lifeline support for broadband could be threatened, though it called such an outcome unlikely and said that “the benefits of reclassification would outweigh the removal of broadband Internet access service from the Lifeline program.”

Pai today pointed out that, when the Obama-era FCC added broadband to the Lifeline program, broadband was not yet classified as a Title II common-carrier service. “It is the common-carrier status of the provider, not the service, that governs whether the provider is eligible to receive Lifeline support for services provided over its network,” Pai said. “If a common carrier offers voice service and qualifies as an ETC [eligible telecommunications provider], the Lifeline program can support affordable broadband Internet access and service.”

Fight to protect net neutrality “will continue”

Today’s remand response did not address preemption of state net neutrality laws. The FCC tried to preempt all such laws, but last year’s court decision said the commission cannot do that. An ongoing court case will decide whether California’s net neutrality law can be enforced.

The remand order could be met with lawsuits from some of the same advocacy groups, state attorneys general, and tech companies that previously challenged the repeal. “This remand order callously dismisses the valid concerns of public safety officials, competitive broadband providers and millions of disconnected low-income families who can’t afford to get online,” Free Press Policy Manager Dana Floberg said. “But Pai goes even further, insisting that if the agency’s decisions on these issues harm these constituencies, that harm is justified by the supposed benefits of repealing Title II.”

Free Press, one of the FCC’s opponents in the net neutrality court case, criticized Pai for claiming that the repeal spurred new broadband development. “Approximately 92 percent of the fiber deployments made during Pai’s chairmanship were actually planned and announced during the last few years of the Obama administration, when Title II was securely in place,” Floberg said. “Chairman Pai is trading away critical public protections for a bag of magic beans, and a wink and a nod from cable lobbyists. We need public servants who will actually listen to people, consider the data and serve community needs instead of long-debunked ideologies.”

Public Knowledge, another advocacy group that fought the repeal, said the fight will continue. “Ironically, the FCC is now claiming sweeping authority over social media and other online platforms without a legitimate legal basis—after claiming it has no authority to regulate broadband, which clearly falls under the agency’s traditional telecommunications jurisdiction,” Public Knowledge Legal Director John Bergmayer said, referring to Pai helping Trump impose a crackdown on Twitter and Facebook.  “Nevertheless, the fight to protect net neutrality and promote good broadband policy is not over, and Public Knowledge will continue to engage in that fight.”