Court Tells FCC Its Attack On Tribal Broadband Subsidies Wasn't Based On The Facts

from the back-to-the-drawing-board dept

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of Pai's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.

One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.

Some of the most frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 in late 2017 to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stood to benefit.

The courts didn't much like Pai's attack on what, by any measure, was a pretty modest subsidy with historically bipartisan support. Back in August of 2018, the US Court of Appeals for the District of Columbia Circuit stayed the FCC decision pending an appeal. That same court late last week issued a ruling (pdf, hat tip Ars Technica) reversing the FCC's decision, shoveling the entire affair back to the FCC to try again. The court ruling rather politely points out that the lion's share of the FCC's justifications for its attack on Lifeline appear to have been, for lack of a more technical term, pulled straight from the FCC's ass:

"The Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence . In adopting the Tribal Facilities Requirement, the Commission's decision evinces no consideration of the exodus of facilities-based providers from the Tribal Lifeline program. Neither does it point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout. Nor does it analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers. Further, the Commission ignored that its decision is a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Similarly, in adopting the Tribal Rural Limitation, the Commission's decision evinces no consideration of the impact on service access and affordability . Its decision does not examine wireless deployment data related to services to which most Tribal Lifeline recipients subscribe."

Again, that's the court effectively telling the FCC that it made a sweeping policy decision without looking at the actual evidence or listening to contrasting viewpoints. If you've followed along with the agency's facts-optional attacks on net neutrality, much of which is based on completely fabricated telecom sector lobbyist nonsense, none of this should be particularly surprising. Consumer advocates like the EFF were quick to wonder if other Pai-era FCC policy choices will come to be dismissed as similarly lacking in the actual evidence department:

I suspect we are going to see a trend here. This reminds me of the AT&T/Verizon petition to the FCC to end the competition policies Congress enacted in '96. Same rationale the FCC lost on underlies that petition, which is cutting off small ISPs will come make them deploy more. https://t.co/4Fuveqr6p3 — Ernesto Falcon (@EFFFalcon) February 4, 2019

Given the net neutrality fight (opening arguments for which began last Friday) hinges heavily on whether the FCC supported the repeal with hard data (it didn't), the courts may similarly find the FCC there too acted in ways that were "arbitrary and capricious" and detached from objective reality.

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Filed Under: ajit pai, arbitrary and capricious, broadband subsidies, digital divide, fcc