CPUC Supports Title II Reclassification Without Preemption

If the FCC doesn’t impede state regulation, the California Public Utilities Commission will support FCC open internet rules and reclassifying broadband information access service (BIAS) as a telecommunications service under Title II of the Communications Act, the CPUC decided Thursday. Through a unanimous vote on the consent agenda during the state commission’s livestreamed meeting, commissioners agreed the CPUC should file comments urging the FCC to reclassify broadband as a telecom service and mobile BIAS as a commercial mobile service.

“A free and open Internet is critical to areas such as energy, universal service, access to the Internet by persons with disabilities, and public safety,” said the CPUC staff memo that commissioners supported. But California should urge the federal commission “to establish the federal framework as a floor, providing open Internet protections to everyone, but allowing states to adopt their own requirements that are not inconsistent with the FCC rules,” it said. California adopted a net neutrality law in 2018 “as an exercise of its historic police power to protect consumers and public health and safety,” said the CPUC: That state law “is entirely consistent with the FCC’s expressed goals of ensuring Internet openness, safeguarding national security, protecting public safety and supporting other public interest goals. There is no reason to preempt state rules when they are not in conflict with federal policy.”

The FCC should “avoid unlawful and inefficient application of forbearance authority to provisions that reserve state authority,” such as Section 253 of the Communications Act, the staff memo added. The CPUC will oppose the FCC forbearing from a requirement that BIAS providers contribute to universal service funds, the staff memo said. Doing so would create “inequity in the contribution base and the potential [for] inadequate funding for universal service, both at state and federal levels,” it said. “For example, in response to this concern about shrinking intrastate revenues supporting California’s universal service programs, the CPUC recently moved away from a surcharge based on revenues and adopted a flat-rate surcharge based on access lines. The CPUC should urge the FCC to immediately resolve the contribution issue for BIAS as part of the universal service fund programs.” Also, while the FCC should adopt privacy rules, it shouldn't “inhibit states’ ability to institute their own broadband privacy rules,” it said.

Treating broadband as a telecom service “would restore the FCC’s authority to facilitate broadband deployment and BIAS providers’ infrastructure access via pole attachments,” said the CPUC memo. “A Title II classification for BIAS also supports the states’ ability to enforce safety regulations for pole attachments by standalone BIAS providers.” There are “real-world implications for public safety,” it said. “The ability to enforce safety regulations for pole attachments is paramount in California, which has suffered unprecedented wildfires and windstorms that have wreaked havoc on utility infrastructure.” But under the current Title I classification, a provider might argue that, as an information service, its broadband service is exempt from state investigations and fines.

Title II reclassification and open internet rules promote energy grid safety and reliability, while communications “are an essential component of critical infrastructure and public safety,” the CPUC memo said. “Strong non-discriminatory rules are needed to ensure that providers of emergency services or public safety agencies are not impaired in providing comprehensive, timely information to the public in a crisis.”