Before the Federal Communications Commission Washington, D.C. 20554
In the Matter of ) Restoring Internet Freedom ) WC Docket Nos. 17-108, 17-287, 11-42
Comments of the Broadband Institute of California @ Santa Clara University School of Law (BBIC)
April 20, 2020
I. Introduction
These comments are respectfully submitted on behalf of The Broadband Institute of California @ Santa Clara University School of Law (BBIC), an unincorporated organization at Santa Clara University that conducts research, convenes forums, and comments on state and federal rulemakings relevant to Information and Communications Law and Policy. These comments reflect the view of the BBIC’s Co-Directors, Professors Allen S. Hammond, IV, and Catherine Sandoval, assisted by the BBIC’s law student interns.1 These comments are submitted in response to the D.C. Circuit’s remand in Mozilla v. FCC,2 of the FCC’s Restoring Internet Freedom Decision3 to address the Federal Communications Commission’s (FCC) failure to consider the public safety implications of its 2018 decision to repeal the net neutrality rules the FCC adopted in 2015.4 In Mozilla v. FCC, the “Governmental Petitioners challenge as arbitrary and capricious the Commission’s failure to consider the implications for public safety of its changed regulatory posture
1 Thanks to BBIC Interns and SCU Law Students Robert Murillo, Ben Katzenberg, Yi Lu, Kasey Kagawa, and Rosa Rico for their contributions to this comment. Thanks to SCU Law High Tech Law Institute Managing Director Nikki Pope and SCU HTLI Program Director Dorice Kunis, and to SCU Law Webmaster Michelle Waters, SCU Law External Relations Director Kendra Livingston, and the SCU Law Information Technology Staff including Michael Morales and Robert Corrales for their work and assistance to convene two online forums on Net Neutrality and Public Safety, each held during the COVID-19 Shelter in Place Order in California on March 25, 2020 and April 17, 2020. These comments are filed in honor of our Santa Clara Law School faculty emeritus colleague Professor Jiri Toman who passed away this week from COVID-19. Thank you for your legacy of contributions to humanitarian law and your kindness Jiri. 2 Mozilla v. FCC, 940 F.3d 1, 59-63 (D.C. Cir. 2019). 3 Restoring Internet Freedom, WC Docket No. 17-108, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311 (2017) (Restoring Internet Freedom Order). 4 In re Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601 (2015) (“Open Internet Order”), upheld by United States Telecom Association v. FCC, 825 F.3d 674, 689–697 (D.C. Cir. 2016). 1 in the 2018 Order.” “And they are right,” the D.C. Circuit concluded.5 Analysis of the public safety issues at stake in the FCC’s net neutrality rulemaking must begin with recognition of the broad scope of the FCC’s statutory duties to “promote safety of life and property through the use of wire and radio communications” established by Congress in the Communications Act of 1934.6 The FCC’s Public Notice requesting comments to refresh the record in response to the Mozilla v. FCC remand of public safety issues, lifeline, and pole attachment, issues the FCC failed to address in its 2018 decision,7 omits recognition of the FCC’s statutory public safety duties. As discussed herein, the FCC’s Remand Notice unlawfully attempts to narrow the FCC’s responsibilities by considering only an undefined category of “public-safety communications during emergencies.”8 The FCC violates both its statutory duties under the Communications Act of 1934 to “promote safety of life and property through the use of wire and radio communications” and the Administrative Procedures Act (APA),9 by confining its remand notice and its responsibilities to only a narrow and undefined category of “public-safety communications” during an indeterminate time period of “emergencies.” The FCC remand notice fails to delineate the category of “public-safety communications” it deems worthy of examination in this remand, and the time period when such communications should be of concern. This attempt to regulate for a narrow and undefined category of speech, type of speakers, and time period raises notice issues under the APA by failing to apprise the public of the “terms or substance of the proposed rule or a description of the subjects and issues involved.”10 The FCC cannot cure this deficiency by defining these categories in its order on remand without giving the public an opportunity to contemplate on the scope of its proposed rulemaking.11 Congress established the FCC to “promote safety of life and property through the use of wire and radio communications” and the FCC is not entitled to reduce its responsibilities to only
5 Mozilla v. FCC, 940 F.3d at 59. 6 47 USC 151. 7 Wireline Competition Bureau Seeks to Refresh Record in Restoring Internet Freedom and Lifeline Proceedings in Light of the D.C. Circuit’s Mozilla Decision, WC Docket Nos. 17-108, 17-287, 11-42, Feb. 19, 2020 (“FCC, Mozilla Remand Notice”). 8 Id. at 1-2. 9 5 U.S.C. § 551 (2012); 5 U.S.C.A § 706 (West). 10 5 U.S.C.A. § 553 (West); Prometheus Radio Project v. FCC, 373 F.3d 372, 412 (2004) (Prometheus I). 11 See Prometheus I, 373 F.3d at 412 (the Commission's decision to withhold the Diversity Index Methodology it used in its Order from public scrutiny was not without prejudice, requiring remand). 2 certain undefined categories of speakers, types of speech, or time periods. The FCC’s attempts to rewrite its responsibilities through a Wireless Bureau Public Notice violates its duties under the Communications Act. The COVID-19 Pandemic and National State of Emergency President Trump declared on March 13, 2020 underscore the importance of the FCC’s duties to promote safety of life and property through wire and radio communications.12 The FCC’s Remand Public Notice raises constitutional issues regarding the vagueness of the speech it indicates is worthy of regulatory attention.13 The FCC’s failure to define the parameters of the categories of speech, type of speaker, and time period its Remand Public Notice suggests are subject to this rulemaking, renders indiscernible the applicable constitutional standard for the speech regulation the FCC appears to contemplate.14 The FCC should rescind its Remand Public Notice and start anew with a Notice recognizing the breadth of its statutory responsibility to “promote safety of life and property through the use of wire and radio communications.” The D.C. Circuit remanded the FCC’s 2018 Internet Freedom Order for failure to address “the direct and specific comments by Santa Clara County, former California Public Utility Commissioner Sandoval, and others [who] repeatedly raised substantial concerns about the Commission’s failure to undertake the statutorily mandated analysis of the 2018 Order’s effect on public safety.”15 The COVID-19 national State of Emergency and many local, tribal, and statewide emergency declarations of a state of emergency emphasize the importance of the FCC’s role to “promote safety of life and property through the use of wire and radio communications” as we increasingly use the Internet to protect our lives, community, property, health, safety, welfare, and democracy. It remains imperative to public health, safety, and to safety of life and property, that the FCC conduct its remand in a fashion consistent with its duties under the Communications Act and the APA. An open and neutral Internet safeguarded by enforceable net neutrality rules—is imperative to safety of life and property.
12 White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, March 13, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-declaring- national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. 13 F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239 (2012). 14 Turner Broad. Syst. v. FCC, 512 U.S. 622, 643 (1994) (Turner I); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 14 Turner I, supra n. 14. 14 Id. at 642. 14 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 . 15 Mozilla v. FCC, 940 F.3d at 99-100. 3
The BBIC writes these comments while under a mandatory Shelter in Place Order in Santa Clara County, California, a directive first imposed on March 16, 2020.16 On March 9, 2020, Santa Clara University announced its cancellation of in-person classes and its switch to online education only to mitigate risks due to COVID-19.17 We are now in our sixth week of teaching and learning through a 100% online law school and plan to conduct exams online. The BBIC joins the City of Los Angeles, the County of Santa Clara, the Santa Clara County Central Fire Protection District, and the City of New York in requesting a 60-day extension of the deadline to submit comments in the above-captioned proceeding. The Shelter in Place Orders and State of Emergency Declarations complicate efforts to coordinate our remarks. Our response is enabled only through reliable and open Internet access, yet several BBIC members have experienced periods of intermittent Internet access issues and outages--some outages lasting for days for many of our team members since the March 16, 2020 Shelter in Place Order took effect for Santa Clara County—the area where we are located. The Government agencies planning to comment on this proceeding are fully occupied with their public safety duties, while the public is occupied with trying to survive this pandemic. As educators and students, we have worked hard to deliver, and participate in, a first-class legal education while many students and faculty experience Internet access issues that interfere with class teaching, participation and learning. At least one Santa Clara University Law student has been diagnosed with COVID-19, along with two undergraduate students, and one SCU staff member.18 As we were preparing the submission of this comment we received the news that our SCU Law Faculty Emeritus collegue Jiri Toman passed away from COVID-19. Santa Clara County’s Shelter in Place Order is effective through May 3, 2020, but may be extended to mitigate public health risks and protect the safety of the people of our county.19 To avoid arbitrary and capricious-decisionmaking, the FCC must recognize the extraordinary
16 Santa Clara County, Order of the Public Health Officer of the County of Santa Clara Directing All Individuals Living in the County to Shelter at their Place of Residence Except for Essential Needs, et. al., March 16, 2020, https://www.sccgov.org/sites/covid19/Documents/03-16-20-Health-Officer-Order-to-Shelter-in-Place.pdf. 17 Santa Clara University, President's Update on COVID-19, March 9, 2020, https://www.scu.edu/kob/covid19- 030920/. 18 Santa Clara University, COVID-19 Resources and Updates, April 17, 2020, https://www.scu.edu/covid-19/; Santa Clara University, COVID-19 Update #10, March 20, 2020, https://www.scu.edu/covid-19/campus-messages/320- covid-19-update-10/. 19 Santa Clara County, Order of the Public Health Officer of the County of Santa Clara Directing All Individuals Living in the County to Shelter at their Place of Residence Except for Essential Needs, et. al., March 31, 2020, https://www.sccgov.org/sites/covid19/Documents/03-31-20-Health-Officer-Order-to-Shelter-in-Place.pdf. 4 hardships the public faces as we contribute to this rulemaking during a pandemic, and should extend its comment deadlines in this proceedings for 90 days as suggested by several parties.
II. FCC Statutory Duties to Protect Public Safety through Wireless and Wireline Communications
Congress created the FCC for the purpose of, “promoting safety of life and property through the use of wire and radio communications.” The FCC failed to account for the impact of its internet freedom order on its duty to promote public safety prompting the DC Circuit Court of Appeals in Mozilla v. FCC to rightly conclude that: "the [FCC's] disregard of its duty to analyze the impact of the [order] on public safety renders its decision arbitrary and capricious in that part and warrants a remand with direction to address the issues raised." The FCC is required to consider public safety by both its enabling act, Communications Act of 1934, 47 U.S.C § 151, and by the Wireless Communication and Public Safety Act of 1999, 47 U.S.C. § 615.20 Under the Communications Act of 1934, the FCC is required to “make available, so far as possible to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with “adequate facilities at reasonable charges, for the purpose of promoting safety of life and property through the use of wire and radio communications.”21 The Wireless Communication and Public Safety Act of 1999 requires FCC to “encourage and support efforts by States to deploy comprehensive end-to-end emergency communications infrastructure and programs, based on coordinated statewide plans, including seamless, ubiquitous, reliable wireless telecommunications networks and enhanced wireless 911 service.”22 The Wireless Communication and Public Safety Act of 1999 directs the Commission to “encourage and support efforts by States to deploy comprehensive end-to-end emergency communications
20 Nuvio Corp. F.C.C., 473 F.3d 302, 307 (D.C. Cir. 2006). 21 Mozilla v. FCC, 940 F.3d at 109. 22 Id. at 93. 5 infrastructure and programs” and to “consult and cooperate with State and local officials responsible for emergency services and public safety.23 The Wireless Communication and Public Safety Act of 1999 adds to the FCC’s duties under the Communications Act, but does not narrow its responsibilities to promote “safety of life and property through the use of wire and radio communications” as required under the Communications Act. In Nuvio v. FCC, then Judge, now Justice Kavanaugh in his concurrence emphasized the importance of the FCC’s public safety mission and statutory responsibilities. He noted that five years after enacting the Wireless Communication and Public Safety Act of 1999, Congress enacted the ENHANCE 911 Act,24 finding that “for the sake of our Nation's homeland security and public safety, a universal emergency telephone number (911) that is enhanced with the most modern and state-of-the-art telecommunications capabilities possible should be available to all citizens in all regions of the Nation.”25 Congress made clear that “enhanced 911 is a high national priority.”26 In his concurrence, Judge Kavanaugh emphasized “ that adequate 911 service is vital to the personal security of American citizens and the homeland security of our Nation.”27 “The broad public safety and 911 authority Congress has granted the FCC therefore includes the authority to prevent providers from selling voice service that lacks adequate 911 capability,” Judge Kavanaugh emphasized.28 As Judge Kavanaugh recognized the FCC is charged with both broad public safety and 911 authority, indicating that the FCC is required to consider both sets of responsibilities in its rulemakings. Mozilla v. FCC faulted the FCC’s failure to consider record comments about the impact of net neutrality repeal on public safety. The CPUC warned that “without non-discriminatory rules, providers of emergency services or public safety agencies might have to pay extra for their [Internet] traffic to have priority”; consequently, “their ability to provide comprehensive, timely information to the public in a crisis could be profoundly impaired.”29
23 Id at 94. 24 Pub L. No. 108-494, 118 Stat. 3986 (2004) (codified at 47 U.S.C. § 942). 25 Nuvio Corp. v. F.C.C., 473 F.3d 302, 311 (citing Pub L. No. 108-494, 118 Stat. 3986 (2004) (codified at 47 U.S.C. § 942)). 26 Id. 27 Id. at 311-312. 28 Id. 29 Id. at 95 (citing CPUC, Comments, In the Matter of Restoring Internet Freedom, at 29 (WC Docket No. 17-108) (July 17, 2017)). 6
The public is at the center of the FCC’s statutory responsibility to promote “safety of life and property through wireless and wireline communication.” Public safety concerns are not limited to analysis of the ability of institutional public safety actors such as first responders or governments to communicate to the public, to each other, or for the public to reach the government through 911 or other channels. The Internet supports public safety by facilitating communications from the public to a wide variety of institutions and to other members of the public. The FCC’s Remand Public Notice misses the mark by attempting to diminish the FCC’s responsibility to only consider an undefined category of “public safety communications during emergencies,” when in fact the FCC’s responsibility is broad, as Judge Kavanaugh’s concurrence in Nuvio recognized.30 III. The FCC Net Neutrality Repeal and Mozilla Remand Notice Omits Consideration of Critical Infrastructure Vital to the Nation’s Economy, National Interest, Public Health, and Safety Mozilla v. FCC cited the comments of Santa Clara University Law Professor Catherine Sandoval, former Commissioner of the California Public Utilities Commission, who noted in the FCC docket leading to the 2018 Internet Freedom Order that the California Public Utility Commission (CPUC) “authorized energy utility companies to expend taxpayer [ratepayer] funds on Internet-based “demand response programs” that are “activated during times of high demand, or when fire or other emergencies make conservation urgent,” and “call on people and connected devices to save power.””31 Professor Sandoval’s comments emphasized that distributed energy resources connected to home Wi-Fi enable people and the Internet of Things (IoT) including devices such as Internet- connected thermostats, solar panels, and energy storage units to contribute to the electric grid’s management to protect safety and reliability.32 “Protecting institutional users such as energy
30 Nuvio Corp. v. F.C.C., 473 F.3d 302, 311-312. 31 Mozilla Corp. v. FCC, 940 F.3d at 73, 99. 32 Id. (citing Written Statement of Commissioner Catherine J.K. Sandoval, Commissioner, California Public Utilities Commission, Before the Congressional Forum on Net Neutrality, Hosted by Congresswoman Doris O. Matsui, Sept 24, 2014, at 36 [hereinafter Commissioner Sandoval, 2015 Open Internet Ex Parte Comments]; Catherine J.K. Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, 9 SAN DIEGO JOURNAL OF CLIMATE & ENERGY LAW 1, 34, 56 (2018) [hereinafter, Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change]. 7 utilities would be insufficient to protect the energy safety and reliability. Access to mass-market public Internet plans is critical to the energy ecosystem’s reliability and safety.”33 Professor and then CPUC Commissioner Sandoval’s comments to the FCC’s 2015 Open Internet proceeding pointed out that for “utilities with millions of customers such as [IOU] Southern California Edison (SCE) . . . regulated by the CPUC, with over 4.9 million customer connections, negotiating Internet access agreements with multiple ISPs to reach their 14 million customers would be costly, risky, and fraught with uncertainty.”34 ISPs may ask utilities to pay to reach customers, their supply chain, regulators, public safety personnel, researchers, the media, and others needed for safe and reliable operations.”35 ISP conduct that may slow Internet traffic that does not pay for priority as allowed by the FCC’s 2018 Internet Freedom Order creates safety and reliability risks and undercuts just and reasonable rates, all statutory duties of regulated public utilities such as electric, natural gas, water, and telephone service providers. As millions of Americans Shelter in Place to mitigate the risks of the COVID-19 virus, we depend on the Internet as well as telephone companies, and electric, natural gas, and water utilities and their supply chain. People on breathing equipment that depend on electricity are particularly vulnerable to outages. Millions who depend on food in the refrigerator and freezer would face increased safety risks and financial hardships if Internet slowdowns led to energy blackouts that required consumers to replace spoiled food. Avoiding energy blackouts is more important now than ever as Americans cannot leave their homes to go to places for energy charging or to cooling or warming centers, dire situations reminiscent of the challenges many faced during the Public Safety Power Shutoffs in California in 2019.36 Concerns about the coincidence of a COVID-19 resurgence in Fall 2020 through Winter and Spring 2021 before a vaccine is available and the western fire season which begins in late summer to Fall 2020, underscores the imperative of energy and water reliability during this time period. Energy and communications play a symbiotic role with each other; energy is necessary for almost all modern communications systems, and communications systems are increasingly
33 Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, 80 U. Pitt. L. Rev. 953, 999 (2019). 34 Commissioner Sandoval, 2015 Open Internet Ex Parte Comments, supra n. 32 at 3. 35 Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, supra n. 32 at 57. 36Kayla Balaraman, PG&E CEO promises ‘shorter, fewer’ shut-offs continuing for the next 5 years, UTILITY DIVE (Dec. 20, 2019), https://www.utilitydive.com/news/pge-ceo-shut-offs-shorter-fewer-five-years/569466/. 8 integral to energy facilities and services.”37 Energy and communications systems are key drivers for the U.S. economy, democracy, and national security, underlying the operations of nearly all businesses, public safety organizations, healthcare providers, education, and government.38 “Critical infrastructures and key assets are highly dependent on each other. The failure of one critical infrastructure or key asset may quickly cascade and damage the functionality of nearby sectors.”39 Communications systems, energy and water are among the sixteen sectors designated under the Critical Infrastructures Protection Act of 2001 (CIPA) as Critical Infrastructure “whose cyber and physical security are vital to the U.S. economy and national interest.”40 Presidential Policy Directive (PPD)-21 identifies “energy and communications systems as uniquely critical due to the enabling functions they provide across all critical infrastructure sectors.”41 PPD-21 identifies the Communications Sector as critical because it provides an “enabling function” across all critical infrastructure sectors.”42 The U.S. Department of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA), emphasized that the Communications sector has evolved over the past 25 years “from predominantly a provider of voice services into a diverse, competitive, and interconnected industry using terrestrial, satellite, and wireless transmission systems. The transmission of these services has become interconnected; satellite, wireless, and wireline providers depend on each other to carry and terminate their traffic and companies routinely share facilities and technology to ensure interoperability.”43
37 Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, supra n. 32 at 11. 38 See Catherine J.K. Sandoval, Opinion: Net neutrality safeguards democracy, the economy and national security, MERCURY NEWS, Dec. 12, 2017 (arguing that following adoption of the FCC’s net neutrality repeal order “Health care providers who use the internet to access electronic medical records, educational institutions, water and energy companies, government institutions, businesses and individuals who post content become fair game for ISP priority- payment demands.”), http://www.mercurynews.com/2017/12/12/opinion-net-neutrality-safeguards-democracy-the- economy-and-national-security/ [https://perma.cc/3U4S-U5MN]. 39 Id. at 11-12 (citing Joe D. Whitley, George A. Koenig, Steven E. Roberts, Homeland Security, Law, and Policy Through the Lens of Critical Infrastructure and Key Asset Protection, 47 JURIMETRICS J. 259, 269–70 (2007) (citing Electricity Modernization Act of 2005, 42 U.S.C.A. § 15801 (2005)). 40 Critical Infrastructures Protection Act of 2001 (CIPA), 42 U.S.C.§ 5195c (Supp. I 2001), Pub.L. 107-56, Title X, § 1016, Oct. 26, 2001, 115 Stat. 400. 41 The White House (President Obama), Presidential Policy Directive -- Critical Infrastructure Security and Resilience, PRESIDENTIAL POLICY DIRECTIVE/PPD-21, February 12, 2013, https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical- infrastructure-security-and-resil. 42 U.S. Dept. of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA), Communications Sector, last revised, Dec. 4, 2018, https://www.cisa.gov/critical-infrastructure-sectors. 43 Id. 9
The Information Technology Sector is a vital cross-cutting sector among those designated as critical infrastructure by PPD-21. CISA notes that the Information Technology Sector “is central to the nation's security, economy, and public health and safety as businesses, governments, academia, and private citizens are increasingly dependent upon Information Technology Sector functions.”44 “These virtual and distributed functions produce and provide hardware, software, and information technology systems and services, and—in collaboration with the Communications Sector—the Internet.”45 Professor Sandoval’s Reply Comments submitted in the FCC’s 2018 Internet Freedom Docket repeatedly emphasized that “an open and neutral Internet is essential to protect critical infrastructure such as the energy sector. The open Internet is vital to every American dependent on the energy, water, communications, police, fire, public safety, military, government, business, health, educational, and other services that rely on the open Internet.”46 The CPUC’s comments in that docket emphasized that “as the 2015 Open Internet Order discusses, the absence of strong anti-discriminatory rules could undermine critical infrastructure and public safety.”47 Despite these record comments and the FCC’s duties under CIPA regarding the Communications and Information Technology sectors, and its duties to protect safety of life and property under the Communications Act, the FCC’s Internet Freedom Order failed to mention Critical Infrastructure. The FCC failed to consider the implications of net neutrality’s repeal on Critical Infrastructure and the millions of Americans who depend on sectors designated as Critical Infrastructure, or the interdependence of those sectors on an open and neutral Internet.
44 U.S. Dept. of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA), Information Technology Sector, last revised, Feb. 11, 2020, https://www.cisa.gov/information-technology-sector. 45 Id. 46 Catherine Sandoval, Reply Comments, In the Matter of Restoring Internet Freedom, WC Docket No. 17-108, Aug. 30, 2017, at 47 [hereinafter Sandoval, Internet Freedom Reply Comments]. 47 CPUC, Comments, In the Matter of Restoring Internet Freedom, at 29 (WC Docket No. 17-108) (July 17, 2017) (citing 2015 Open Internet Order, 30 F.C.C. Rcd. 5601, ¶¶ 114, 126, 150: Paragraph 114 rejects the “minimum access standard” proposed to safeguard “individualized bargaining” from unduly degrading internet use; Paragraph 126 discusses the record support for barring paid prioritization based on comments including statements that paid prioritization risks degrading other users’ access and can harm public safety and universal service, citing to an ex parte letter from then-CPUC Commissioner Catherine Sandoval, “asserting that paid prioritization undermines public safety and universal service….”); Paragraph 150 states that “[b]ased on the record before us, we are persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet.” That conclusion is based on record comments including those which raise concerns that a commercial reasonableness standard “would permit paid prioritization, which could disadvantage smaller entities and individuals.”), https://ecfsapi.fcc.gov/file/107172199528427/WC%20Docket%20No.%2017- 108%20CPUC%20Comments%20on%20Restoring%20Internet%20Freedom.pdf. 10
The FCC’s Mozilla Remand Public Notice compounds this failure by omitting any mention of Critical Infrastructure. Many Shelter in Place orders such as California’s have deemed Critical Infrastructure sectors and their workforce as essential workers exempt from the Shelter in Place order.48 “Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations,” CISA emphasized.49 “Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions,” CISA noted.50 Education including K-12 and Higher Education are among the sectors designated as Critical Infrastructure and are part of the Government Facilities Sector.51 “Government facilities are highly interconnected, both physically and through a variety of information and communications technologies.”52 The Government Facilities Critical Infrastructure Sector Plan identifies four principal classes of interdependencies between this and other sectors: Physical, Cyber, Geographic, and Logical. The Government Facilities Sector Plan observes that a facility has “cyber interdependency if its state depends on information transmitted through the information infrastructure. Cyber interdependencies connect infrastructure and resources to one another via electronic information links. The outputs of the information infrastructure are inputs to the other infrastructure, and information is the “commodity” passed between the infrastructure and resources.”53 Education, including the Higher Education is cyber interdependent with the Communications and Information Technologies Sector. Our ability to continue legal education at Santa Clara University School of Law since Santa Clara University’s President issued an order to
48 Governor Gavin Newsom, California, EXECUTIVE ORDER N-33-20, March 19, 2020, https://covid19.ca.gov/img/N-33-20.pdf. 49 CISA, Identifying Critical Infrastructure During COVID-19, April 17, 2020, https://www.cisa.gov/identifying- critical-infrastructure-during-covid-19. 50 Id. 51 CISA, Government Facilities Sector, December 04, 2018, https://www.cisa.gov/government-facilities-sector. 52 U.S. Dept. of Homeland Security, General Services Administration, Government Facilities, Sector-Specific Plan, An Annex to the NIPP 2013, 2015, file:///C:/Users/Owner/Documents/Net%20Neutrality/Public%20Safety/FCC%20Remand%20Mozilla%20v%20FC C/Critical%20Infrastructure%20Government%20facilities%20Sector%20plan%20nipp-ssp-government-facilities- 2015-508.pdf. 53 Id. at 6-7. 11 cancel in-person classes and move to a virtual format54 depends on the Internet to conduct contemporary legal education in an interactive format that requires bandwidth intensive applications such as Zoom video conferencing through which we have conducted classes for the past five weeks. Students, faculty, and staff depend on the ability to upload and download in near real-time from the residence in which they are sheltering in place to facilitate class dialogue, and access to the breadth of the Internet to conduct research and educational activities. After Santa Clara County and five other Bay Area counties issued a Shelter in Place order, on March 16, 2020, Santa Clara University’s President, Father Keith O’Brien informed the campus community that the university would continue online instruction and exams through the end of the Spring quarter and Law School semester for 2020.55 SCU’s President noted that as of March 16, 2020 “[O]ver 150 universities thus far have made a similar decision” to close in- person classes and transition to online education.56 Santa Clara University committed to do so “with academic rigor in our Jesuit tradition and with attention to care for the whole person, learning from each other and best practices nationally.”57 SCU President Father O’Brien noted that “[d]epending on the course, students may be asked to get technology ready at home, download particular software, review educational materials, and prepare introductory assignments.”58 Santa Clara University Law School switched to 100% online education beginning on March 16, 2020 after the end of Spring break so we had less time to transition from more than 125 years of conducting classes in-person to an educational system dependent on distributed Internet access to each faculty, student, and staff member’s residence. While Santa Clara University has gigabit Internet speeds on campus, online education depends on mass market Internet access at the shelter in place residences of our students, faculty and staff during the COVID-19 pandemic. The FCC’s Internet Freedom Order defines “broadband Internet access service” as “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are
54 Santa Clara University, President's Update on COVID-19, March 9, 2020, https://www.scu.edu/kob/covid19- 030920/. 55 Santa Clara University, President's Update on COVID-19, March 16, 2020, https://www.scu.edu/kob/update-on- covid-19/. 56 Id. 57 Id. 58 Id. 12 incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.”59 The FCC explains that by “mass market, we mean services marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries. “Schools” would include institutions of higher education to the extent that they purchase these standardized retail services.”60 “For purposes of this definition, “mass market” also includes broadband Internet access service purchased with the support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF),” but the FCC explains, it “does not include enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements.”61 Whether a school, university, government, or other institution is covered by this definition of mass market services in its Internet use at the institution seems to turn on whether they are offered customized or individually negotiated arrangements, as opposed to those sold on a standardized basis. This definition tracks the FCC’s 2015 Open Internet Order, which the Internet Freedom Order calls the Title II Order and the FCC’s 2010 Open Internet Order.62 During the Shelter in Place, Santa Clara University’s campus Information Technology Department continues to support the university’s Internet resources including Zoom, library, and database access, but the primary means of accessing those resources is through mass market Internet services provided through home fixed or mobile Internet connections. The closure of Santa Clara University’s campus, like hundreds of other universities, had greatly diminished Internet access for many students who depended on University Wi-Fi for high-speed Internet access. Many SCU students, like millions of Americans living in the digital divide, regulatory went to campus, libraries and coffee shops to access Wi-Fi and lacked Internet access at home except through a cell phone.63
59 FCC, Restoring Internet Freedom Order, supra note 3, at ¶ 21. 60 Id. at n. 58. 61 Id. 62 Id. (citing In the Matter of Preserving the Open Internet, 25 FCC Rcd. 17,905, 17,910–11, 17932, para. 45 (WC Docket No. 07-52) (2010); In the Matter of Protecting & Promoting the Open Internet, 30 FCC Rcd. 5601, 5604 at 5745-46, para. 336 & n.879). 63 Pew Research Center, Mobile Technology and Home Broadband 2019, June 13, 2019, https://www.pewresearch.org/internet/2019/06/13/mobile-technology-and-home-broadband-2019/.
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The shift from in-person classes and an open campus to 100% online education left students, faculty, and staff dependent on the mass market wired or wireless Internet connections at their shelter in place residence. This has resulted in range of Internet speeds, access methods, and problems BBIC is concerned that current ISP practices including throttling those who use more than certain quantities of data to 2G speeds will interfere with education, public health access, and undercut public safety, as discussed in more detail below. The FCCs 2018 Internet Freedom Order gives ISPs permission to seek premiums from each of our students, faculty, and staff, as well as from each content source to whom they wish to communicate, in order to ensure delivery of their Internet content and to safeguard their communications from throttling to accommodate paid priority.64 The FCC failed to analyze in its Internet Freedom Order or to address in its Mozilla Remand Public Notice the impact of ISP blocking, throttling, paid priority, or unreasonable network management on Critical Infrastructure sectors including education and the Government Sector. The FCC’s Internet Freedom Order concluded that the “harm” of removing rules that prohibited paid priority “will only occur to the extent the ISP is unable to devise pricing schemes that preserve edge providers’ incentives to bring content while maximizing the ISP’s profit (the exercise of market power is only harmful when it excludes what would otherwise be efficient purchases of access).”65 The FCCs conclusion overlooks the point that in the education sector, the students, faculty, and staff are the content creators. The public at large is the content creator making and sharing videos, photographs, essays, blueprints for face shields and masks, and using video conferencing for education and democratic organization. The FCC imagines “pricing schemes that preserve edge providers’ incentives to bring content” but fails to recognize that every member of the public who uses the Internet is an edge provider. Professor Sandoval’s 2014 testimony before the Congressional Forum on Net Neutrality hosted by Congresswoman Doris Matsui critiqued the attempt to create a division between “edge providers and the public. “In an age of telemedicine, interactive education, home-
64 FCC, Restoring Internet Freedom Order, supra note 3, at ¶¶ 2–4, 220 (repealing FCC rules adopted in 2015 that prohibited ISPs from blocking, throttling, or paid prioritization of Internet traffic except for limited reasonable network management justifications). 65 Id. at ¶ 262. 14 grown video, Facebook, email, the web, and other interactive services--whether novel, mundane, or critical to life, health, and safety--we are all edge providers.”66 In 2003, in American Library Assn. v. US, the Supreme Court mused over whether the Internet in 1999 was “simply another method for making information available in a school or library.”67 This inaccurate characterization of the Internet as a receptacle for passive audiences who merely consume and do not create and disseminate information has been turned on its head. Applications and services now enable easy publishing and distribution of text, video, image, GIS, file, and other content.68 The Internet is a lively two-way, multi-party platform for communication, allowing speech to flourish and ideas to proliferate.69 The lack of Internet gatekeepers makes it an open platform to diverse voices and viewpoints, in contrast to closed studio and cable systems.70 The Internet’s platform for speakers and multi-sided communication makes it an unrivaled mechanism for democratic engagement.71 It would be anathema to protecting safety of life and property and the recognized role of critical infrastructure to allow ISPs to seek premiums from all Internet users to provide or obtain access to content through the Internet. SCU Law’s students, faculty, and staff are each paying for Internet access at their residence or through their mobile phone or device if they do not have or are not able to obtain fixed Internet access. The FCC would allow ISPs to be the arbiter of educational access by allowing ISPs to charge the university and its faculty, staff, and students different prices for access or to stave off deprioritization. It should be up to educators, not Internet Service Providers, to decide how to educate students online. ISPs should not be allowed to compound inequities through permission to demand paid priority from subscribers, platforms, and various sites necessary to obtain education when meeting in-person is not permitted. Even when Shelter in Place restrictions are eased, many students, faculty and staff in vulnerable categories will have to continue to work and study from their residence. They should not be required to risk their health and compromise public health and safety by having to go to the University, coffee shops, libraries or other locations to get Wi-Fi access in an attempt to evade ISP demands for paid priority.
66 ** 67 United States v. Am. Library Ass’n, 539 U.S. 194, 207 (2003). 68 Sandoval, Testimony Before the Congressional Forum on Net Neutrality Hosted by Congresswoman Doris O. Matsui, supra note 32, at 86. 69 Id. 70 Id. 71 Id. 15
Santa Clara University’s Faculty Collaborative for Teaching and Innovation found that during the COVID-19 Shelter in Place, 10-20% of SCU students are concerned considerably or a great deal about meeting basic needs including reliable access to technology, paying bills, food insecurity, and access to health care.72 For online education, access to health care, access to the supply chain including food and mental health services, access to family and many other resources, access to technology is a basic need. BBIC believes that enforceable net neutrality rules that prohibit ISPs from blocking, throttling, paid priority, and unreasonable network management are critical to protecting access to these basic needs that protect safety of life and property. Likewise, the Healthcare and Public Health Sector are “highly dependent on fellow sectors for continuity of operations and service delivery, including Communications, Emergency Services, Energy, Food and Agriculture, Information Technology, Transportation Systems, and Water and Wastewater Systems.”73 That sector’s Critical Infrastructure plan notes that “the public health surveillance function depends on cyber systems, like the Centers for Disease Control and Prevention’s (CDC) BioSense, which gather and analyze clinical data to identify potential disease outbreaks.74 “Internet-enabled networks and devices allow first responders to coordinate care for the injured using data from Internet-enabled “Smart Beds” at hospitals to identify available hospital beds in burn units or other specialty care wards,” CPUC Commissioner Sandoval’s Congressional testimony and FCC comments noted in 2014.75 During the COVID-19 pandemic Internet access has become crucial to safety of life, the public welfare, and preservation of the viability of our health care system. Health care providers are encouraging the public to seek telemedicine consultations first instead of going to see the doctor or going to an urgent care clinic or emergency room to limit COVID-19 exposure.76 Medical professionals are using sites like YouTube to share techniques to save lives during the
72 Santa Clara University, April 2020 Survey of Undergraduate Needs in the Transition to Remote Instruction, April 17, 2020 (on file with Professor Sandoval). 73 CISA, HEALTHCARE AND PUBLIC HEALTH SECTOR, Dec. 4, 2018, https://www.cisa.gov/healthcare-and- public-health-sector. 74 Dept. of Homeland Security, Dept. of Health and Human Services, Healthcare and Public Health Sector-Specific Plan An Annex to the National Infrastructure Protection Plan, 2010, https://www.cisa.gov/sites/default/files/publications/nipp-ssp-healthcare-public-health-2010.pdf. 75 Commissioner Sandoval, 2015 Open Internet Ex Parte Comments, supra note 32, at 51. 76 Meredith Cohn and Hallie Miller, Maryland hospitals join other health care offices in turning to telemedicine during coronavirus, THE BALTIMORE SUN (Apr. 20, 2020), https://www.baltimoresun.com/coronavirus/bs-md- maryland-hospitals-innovation-technology-telemedicine-20200420-ajjrdxyd3zar3kxpgnakwxm22e-story.html. 16
COVID-19 pandemic, discussing topics such as sharing ventilators and turning patients to avoid or delay the need for intubation.77 These YouTube videos that share life-saving information about how to treat COVID-19 patients are often made through personal mobile phones or other devices and plans that depend on mass market Internet access and not through customized or individually negotiated enterprise service offerings. Patients access telemedicine at home through mass-market Internet services. The new Coronavirus has upended the American economy and society, and exposed disparities between our citizens. The wealth disparity, gaps in Internet construction and availability, many ISP practices such as throttling construct and buttress the digital divide in America. The economic reality of being unable to afford stable housing to underpin wired internet connection underscores the importance of mobile Internet access to millions of Americans. Since the COVID-19 State of Emergency, Zoom web-conferencing platform’s rose from 10 million users at the end of 2019 to 100 million users the week of April 12, 2020. With BIAS defined as a Title I service, ISPs would have been able to “throttle” Zoom traffic (and traffic on related platforms including Skype) during the first week of the widespread stay-in-place orders, extracting millions or billions of dollars in profit from Zoom and transferring those profits to the ISP without the ISPs creating any additional value to justify that compensation. The “market principles” cited by the current FCC would tax users after ISPs extracted premiums from Zoom, Skype, WebEx, and consumers to access either side of a service once accessible through the Internet user’s fee. The American economy, currently surviving by a miracle of technology that did not exist 15 years ago, would instead have held itself hostage in order to reallocate the risk of economic collapse. Had the 2018 order progressed more quickly through the courts and prevailed, there is a high probability that we would be in a situation analogous to that at this very moment. The FCC has argued that consumer backlash would ultimately solve the problem by leading to opprobrium for companies that compromised public safety. Backlash would come too late to prevent public safety harms.
77 Dr. Charlene Irvin Babcock, How to Use One Ventilator to Save Multiple Lives, March 14, 2020, YOUTUBE, https://www.youtube.com/watch?v=uClq978oohY; Mount Sinai Health System, Prone Positioning for COVID-19 Patient, YOUTUBE, March 31, 2020, https://www.youtube.com/watch?v=ECdxhNFLwVo&t=795s. 17
The FCC’s Mozilla Remand Public Notice fails to mention health or to define in any way what constitutes “public safety communications” about which the notice seeks comment. As discussed below, this vagueness creates notice issues under the APA, and underscores the constitutional infirmities in the FCC’s apparent attempt to regulate an undefined category of speech or type of speaker. The FCC fails to recognize that millions of Americans depend on mass market Internet access to access health care providers and conduct telemedicine appointments, applications that are bandwidth intensive.78 Allowing ISPs to charge Americans for paid priority or slowing their communications if they fail to pay undercuts public health and safety of life, the mission for which the FCC was created. The D.C. Circuit in Mozilla v. FCC criticized the FCC for failing to address “the multi- faceted public safety concerns associated with subjecting emergency services providers, other public health providers, and the members of the public who depend on those services to paid prioritization and blocking and throttling.”79 Yet, the FCC’s Mozilla Remand Notice repeats this error by failing to ask questions about or propose regulations regarding public access to the Internet that affects safety of life and property. Some ISPs argue that they can promote health or safety by prioritizing communications, but there is no guarantee or requirement that the ISP will prioritize a patient’s telemedicine communication, which may be conducted through a variety of applications. The FCC has imposed no requirements that ISPs safeguard other Internet communications from failure or delay as the ISP accommodates those who pay for priority. “The FCC authorized ISPs to charge content providers to transmit or speed ahead internet data, even if doing so degrades other users…Nor are ISPs required to offer priority access to all, to charge buyers the same price for priority, or to safeguard other users from paid priority delays.”80 The FCC and reviewing courts must recognize that ISP throttling of some traffic to accommodate paid priority can result in telemedicine, education, energy, and other
78 Teresa Iafolla, What Are The Basic Technical Requirements For Telehealth? Evisic, https://blog.evisit.com/what-are- the-basic-technical-requirements-for-telehealth, last visited, April 20, 2020 (recommending 15 mbps down and 5 mbps up for telehealth visits that include video chat); American Academy of Allergy, Asthma, and Immunology, AAAAI, https://www.aaaai.org/practice-resources/running-your-practice/practice-management- resources/Telemedicine/technology (last visited April 20, 2020 (“Most basic to a telemedicine practice is a secure broadband internet connection. The amount and speed of the internet connection will determine the video quality and amount and speed of data transfer. A basic business broadband connection should be sufficient at about 50-100 Mbps (Megabits/sec).” 79 Mozilla v. FCC, 940 F.3d at 100. 80 Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, supra n. 32 at 4. 18 communications failing, not just in delayed transmission. When a participant in a video conference cannot obtain or maintain the speed needed for video or audio transmission, the application fails. The user will not be able to connect or will get disconnected and have to try to get back into the application. The signal might become staccato or “janky,” before it fails resulting in frozen screens and distorted audio, or the connection may suddenly end. Zoom explains that it requires 3G or 4G speeds.81 For group video calling such as the ones used for online education and some telemedicine applications, Zoom requires speeds of 1.5 mbps up and down.82 Current ISP policies that throttle users to 2G speeds after the subscriber consumes a certain amount of data slows users to the standard launched in 1991, with speeds that reached 236 Kbps.83 As Verizon explains, “Scenario #3: You're waiting at the airport and you'd love to watch your favorite show on your tablet. 4G LTE—Ready for takeoff? It should take only about 7 seconds to start streaming.”84 “2G—Video? Seriously? Maybe that guy sitting next to you has 4G LTE on his tablet and will let you watch over his shoulder,” Verizon counsels.85 As Verizon explains, for users the ISP has slowed to 2G speeds who want to use video applications such as telemedicine or to participate in a class electronically to protect their health and safety and public health and safety, the response is “2G—Video? Seriously?”86 As explained in Section XI infra , despite the pledge many ISPs made to the FCC during the COVID-19 pandemic, major ISPs including Verizon, AT&T, and T-Mobile all slow users to 2G speeds or less after a user hits different levels of data consumption.87 Throttling levels that can easily be reached by participating in online legal education for two weeks through a cell phone and by video conferencing including telemedicine for 40-50 hours. In 2015, the FCC fined AT&T $100 million for violations of the 2010 transparency rules for slowing customers on “unlimited” data plans to speeds where mapping and other common
81 Zoom, FAQ: Zoom Basics and Troubleshooting, (last visited April 20, 2020), https://testersupport.usertesting.com/hc/en-us/articles/115003711252-FAQ-Zoom-Basics-and-Troubleshooting#1. 82 Zoom, System Requirements for PC, Mac, and Linux, (last visited April 20, 2020), , https://support.zoom.us/hc/en-us/articles/201362023-System-Requirements-for-PC-Mac-and-Linux. 83 Ashutosh Bhatt, Difference between 2G and 3G Technology, ENGINEERS GARAGE, AN EE WORLD ONLINE RESOURCE, March 27, 2012, https://www.engineersgarage.com/how_to/difference-between-2g-and-3g-technology/. 84 Verizon, The second generation and 2G network speeds, March 4, 2018, https://www.verizon.com/about/news/vzw/2014/05/a-day-in-the-life-with-2g-speed. 85 Id. 86 Id. 87 See infra sec. XI. 19 applications would not work.88 In its 2017 brief to the Ninth Circuit the FCC noted that a “majority of the FCC's current commissioners dissented from the decision to issue the NAL, see id. at 6629–43, and no further action has been taken on it.”89 The FCC’s Internet Freedom Order contends that “since 2008, few tangible threats to the openness of the Internet have arisen.”90 The FCC comes to this conclusion by ignoring the harms of ISP conduct that slows Internet users to the point where they cannot use mapping let alone make a telemedicine video visit. ISP contract terms show that ISPs reserve the right to slow users to 20th century speeds, even when the ISP observes “2G—Video? Seriously?”91 The FCC and State Public Utility Commissions must collect data on the extent to which ISPs are slowing users to speeds that make modern applications such as mapping and video conferencing fail. Moreover, the FCC must recognize these ISP contract terms communicated in small letters that fail to define 2G speeds are insufficient under the FCC’s transparency rules. They constitute unreasonable network management that discriminates against users who engaged in bandwidth intensive activity such as telemedicine or online education during a pandemic. IV. The FCC’s Mozilla Remand Notice Violates the APA in Failing to Define the Parameters of Speech its Terms as Public Safety Communications Worthy of Regulatory Consideration The FCC’s Mozilla remand notice asks: “Could network improvements made possible by prioritization arrangements benefit public safety applications-for example, by enabling the more rapid, reliable transmission of public safety -related communications during emergencies?”92 The FCC remand notice suggests that the FCC is examining the impact of net neutrality on an undefined and limited category of public safety communication. The FCC unduly contracts the range of speech and speakers subject to its statutory duty to protect safety of life and property through wireless and wireline communication. Congress created the Commission for the purpose of, among other things, promoting safety of life and property through the use of wire and radio communications.93
88 In the Matter of AT&T Mobility, LLC., 30 FCC Rcd. 6613 (2015). 89 Brief of the Federal Communications Commission as Amicus Curiae in Support of Plaintiff-Appellee, FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. AT&T MOBILITY LLC, 2017 WL 2398744, 3 No. 15-16585 (Ninth Circuit, May 30, 2017). 90 FCC, Restoring Internet Freedom Order, supra note 3, at ¶ 113. 91 Id. 92 FCC Mozilla Remand Public Notice, supra n. 7, at 1-2. 93 47 U.S.C. § 151. 20
FCC’s notice suggests that it is considering far less communication than is legally required by presuming a limited category of “public safety communication.” The APA requires the FCC to give notice of its proposals.94 The FCC provides no definition of the category of “public safety communication” it would examine. Neither does the FCC provide any rationale for failing to examine the range of communications through the Internet that use mass market Broadband Internet Access Service(“BIAS”) to foster safety of life and property. The FCC violates the APA by failing to give notice of the definition of the “public safety communication” category it is considering and cannot cure this notice in any final decision on remand. Neither can any explanation in the decision on remand about why other communications were excluded cure this notice issue or satisfy the FCC’s statutory duties under the Communications Act.
V. The FCC Violates the Communications Act in Confining its Analysis to an Undefined and Narrow Category of Public Safety Communications In partial response to the D.C. Circuit’s remand, the FCC asked: “Do public safety officials…rely on mass-market retail broadband services that only promise “best efforts” in the delivery of content), rather than dedicated networks with quality-of-service guarantees?”95 This question presupposes the problem is solely one of protecting government public safety officials’ interaction over dedicated networks. In reality, public safety officials and healthcare providers increasingly interact with the public through the larger “best efforts” public communications network composed of data networks, mobile and smart phones and social media. Health care providers recording YouTube videos on treating COVID-19 patients may use mass market Internet communications. The public communicating with health care providers and with each other to discuss COVID concerns or check in on a family member’s health or needs are using mass market Internet communications. A public safety network has been defined as a wireless communications network used by emergency services organizations, such as police, fire and emergency medical services, to prevent or respond to incidents that harm or endanger persons or property.96 The Emergency
94 Prometheus I, 373 F.3d at 412. 95 FCC, Mozilla Remand Public Notice, supra note 7, at 2. 96 SK Telecom and Nokia Complete Development of Mission Critical LTE system for First Responders, August 2, 2016, https://www.sktelecom.com/en/press/press_detail.do?idx=1174. 21
Services Sector Critical Infrastructure Sector Specific Plan notes that “the Internet is widely used by the sector to provide information as well as alerts, warnings, and threats relevant to the [Emergency Services Sector] ESS.”97 The purpose of alerts and warnings is to inform the public which depends on mass market Internet services to receive and contribute to that information. Verizon reported that during the Coronavirus “We offer priority access to our network for first responders and public safety officials,” but did not explain whether those first responders or public safety officials use mass market [broadband Internet Access Service] BIAS, the subject of the 2015 net neutrality rules, or other types of services.98 Verizon’s comments suggest without explanation that public safety officials and mass market BIAS users send and receive signals through the same network. Whether some have individualized arrangements, the network is unified at common points. While most would agree with giving priority to public safety officials, the FCC’s net neutrality repeal would allow the ISP to sell priority to any entity with whom it wishing to deal, on whatever terms it wishes, without offering similar deals to others or safeguarding other data and communications that affect safety of life and property. The FCC’s analysis of only institutional public safety networks used by the Emergency Services Critical Infrastructure sector in response to the Mozilla v. FCC remand fails to recognize the FCC’s statutory duty to protect safety of life and property through wireless and wireline communication. Neither does the FCC recognize the centrality of the public’s role in public safety and public health. Nor does the FCC recognize the public’s increasing reliance on social media as well as mobile phones to seek help and provide valuable information about safety issues including disasters and pandemics. “The FCC’s Open Internet Order did not consider public use of nascent social media tools to foster public safety in America and abroad. Twitter and Flickr were important means of communications by victims of and witnesses to the November 2008 terrorist attack in Mumbai, India.”99 “A decade later photos or live video would frequently emerge from inside disasters,
97 Dept. of Homeland Security, Emergency Services Sector-Specific Plan An Annex to the National Infrastructure Protection Plan, 2010, file:///C:/Users/Owner/Documents/Net%20Neutrality/Public%20Safety/FCC%20Remand%20Mozilla%20v%20FC C/Emergency%20Services%20Critical%20Infrastructure%20Sector%20Plan%20nipp-ssp-emergency-services.pdf. 98 Verizon’s networks stand ready for increases in data traffic, March 12, 2020, https://www.verizon.com/about/news/verizons-networks-stand-ready-increases-data-traffic. 99 Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, supra note 33, at 983 (citing Charles Arthur, How Twitter and Flickr Recorded the Mumbai Terrorist Attack, GUARDIAN (Nov. 27, 2008), https://www.theguardian.com/technology/2008/nov/27/mumbai-terror-attacks-twitter-flickr). 22 terrorist, or dangerous incidents.”100 Social media platforms metamorphisized into robust communication channels used by millions of individuals and entities for a variety of uses including those that promote safety of life and property. Platforms, such as YouTube and Twitter, are frequently used by the community to publish first-hand information about real-time disasters by uploading video/post and thereby function as distributed public safety tools. The FCC needs to recognize that social media, video conferences, search, use of mapping and more are all critical for public safety. As the Camp Fire raged in California in 2019 “wildfire survivors reported trying to get out a video, text, or call as they made life or death decisions to escape or seek shelter. Social media facilitated communications to loved ones as survivors reached places where networks still functioned.”101 “During and in the aftermath of the Camp Fire, Facebook activated its crisis response mode that allows a user to mark themselves “safe” or inquire into the safety of another Facebook member.”102 Several residents of Paradise, California “filmed their evacuation as they fled the Camp Fire. Video posted on the Internet was important as people sought evacuation routes while the Camp Fire raged.”103 In the age of the cellphone, another important investigative tool will be video. Many people turned on their phone cameras as they were escaping or as the fire was approaching their homes, and posted the video to social media.”104 “Investigators will be searching for the video, hoping to create a kind of composite from multiple sources, showing how the fire spread and which way smoke was moving at any given moment.”105 Students at Marjorie Stoneman Douglas High School in Parkland, Florida posted photos, videos, and texts from inside their school during the 2018 shooting, and subsequently used the
100 Id. 101 Id. 102 Id. (citing See Crisis Response, The Camp Fire in Butte County, California, USA, FACEBOOK (Nov. 2018), https://www.facebook.com/crisisresponse/the-camp-fire-2018/support/; see also How do I Mark Myself Safe or Ask if Someone Else Is Safe During a Disaster?, FACEBOOK, https://www.facebook.com/ help/516656825135759?helpref=faq_content (last visited Feb. 11, 2019); Crisis Response, FACEBOOK, https://www.facebook.com/about/crisisresponse/ (last visited Feb. 10, 2019); Eric Ravenscraft, How to Mark Yourself “Safe” On Facebook During an Emergency, HOW TO GEEK (Sept. 7, 2017), https://www .howtogeek.com/324945/how-to-mark-yourself-safe-on-facebook-during-an-emergency/.) 103 Id. (citing See Former Firefighter Films [as] He Evacuates Burning Paradise During Camp Fire, ABC NEWS (Dec. 7, 2018), https://abc7news.com/video-former-firefighter-films-he-evacuates-burning-paradiseduring- camp-fire/4853479/.) 104 Id. (citing Kirk Johnson, What Started the California Fires? Experts Track the Blazes’ Origins, N.Y. TIMES (Nov. 15, 2018), https://www.nytimes.com/2018/11/15/us/camp-fire-paradise-cause.html). 105 Id. 23
Internet as a means to organize and support each other as well as other shooting victims.106 Professor Lucy Bernholz emphasizes that the Internet is a means for organizing civil society responses, including the response to the FCC’s repeated attempts to repeal net neutrality rules, as well as to other issues that pose risks to safety of life and to democracy.107 The FCC has a duty to consider the public’s use of the Internet for public safety, not merely institutional access through commercial accounts.108 “The FCC’s statutory duty is not merely to serve institutional public safety agencies. The FCC’s statutory mandate is “promoting safety of life and property through the use of wire and radio communications.”109 Professor Sandoval’s article, Net Neutrality Repeal Rips Holes in the Public Safety Net argues that “[p]ublic safety paradigms must be reframed to recognize the Internet’s importance to “distributed public safety” as practiced by the whole community, not just by government agencies. The public’s role in public safety, supported by an open Internet and safeguarded by enforceable rules, must take center stage in net neutrality analysis.”110 The FCC fails to consider the risks posed by its asymmetrical regulatory paradigm for Internet regulation. The technical and social shift to more widespread Internet content creation and distribution challenges Internet network designs that dedicate a small percentage of internet bandwidth to uploads.111 “The FCC’s definition of high-speed Internet as of 2018 is still calibrated to an asymmetrical connection that provides more upload than download speed.”112 “Video creation and sharing, GIS, and other protocols challenge the characterization of an asymmetrical connection as “high-speed.” As video services became a larger portion of Internet traffic, they become more sensitive to paid prioritization as a channel for public safety communications.” 113
106 See Abby Ohlheiser & Kayla Epstein, Just Try to Keep Calm, How One Parkland Student’s Phone became his Lifeline and his Voice, WASH. POST (Mar. 3, 2018), https://www.washingtonpost.com/ graphics/2018/lifestyle/parkland-shooting-in-social-media/?utm_term=.07ddba89af90; see also Brandon Griggs, Hiding Under a Desk as a Gunman Roamed the Halls, a Terrified Student Live-Tweeted a School Shooting, CNN (Feb. 15, 2018), https://www.cnn.com/2018/02/15/us/student-live-tweeting-floridaschool- shooting-trnd/index.html. 107 Lucy Bernholz, Santa Clara University School of Law, Net Neutrality/Public Safety Nexus Webinar, April 17, 2020. 108 Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, supra note 33, at 960. 109 Id. 110 Id. 111 Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, supra note 33, at 974. 112 Id. at 975. 113 Id. at 24. 24
In carrying out its statutory mission of promoting safety of life and property through the use of wire and radio communications, the FCC must take into account the evolution of technological use and capabilities.114 “The FCC’s analysis of the evolution of communications technologies including the Internet requires the Commission to consider the shifting use of the Internet for public safety via different communication channels.”115 The FCC should take into consideration that the Internet’s “platform for speakers and multi-sided communication makes it an unrivaled mechanism for democratic engagement and an important platform for public safety.”116 Therefore, any presumption in the 2020 Net Neutrality Public Notice that single out an undefined category “public safety communication” and leave other communication channels that promote safety of life and property fall short of the FCC’s statutory duty and its obligation under the APA to consider important matters. “An agency’s failure to consider and address during rulemaking “an important aspect of the problem” renders its decision arbitrary and capricious.”117 “A “statutorily mandated factor, by definition, is an important aspect of any issue before an administrative agency, as it is for Congress in the first instance to define the appropriate scope of an agency’s mission.”118 When, as here, “Congress has given an agency the responsibility to regulate a market such as the telecommunications industry that it has repeatedly deemed important to protecting public safety,” then the agency’s decisions “must take into account its duty to protect the public.”119 Six months before the FCC adopted the 2018 Internet Freedom Order, the Supreme Court’s June 2017 Packingham v. North Carolina decision recognized the Internet’s pivotal role in American society and democracy.120 “While in the past, there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear.121 It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and
114 See Nuvio Corp. v. FCC, 473 F.3d at 307(citing 47 U.S.C. § 151 (1996)). 115 Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, supra note 33, at 986. 116 Id. at 988. 117 Mozilla v. FCC, 940 F.3d at 94 (citing State Farm, 463 U.S. at 43). 118 Id. (citing Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C. Cir. 2004); accord Lindeen v. SEC, 825 F.3d 646, 657 (D.C. Cir. 2016) (“A rule is arbitrary and capricious if an agency fail[s] to consider * * * a factor the agency must consider under its organic statute.”) (internal quotation marks omitted)). 119 Id. (citing Nuvio, 473 F.3d at 307). 120 See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (citing Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997)). 121 Id. at 957.
25 social media in particular,”122 the Court observed in Packingham. The Internet facilitates a variety of speech and participation by a multitude of speakers in the modern public square. Packingham also recognizes that the Internet facilitates two-way and many-to-many dialogue, not just one-way downloads or information distribution from officials or institutions to “consumers.”123 The FCC’s Internet Freedom Order failed to address or even mention Packingham, despite record comments highlighting the Packingham Court’s reframing of the role of public Internet access.124 Likewise, the FCC’s Mozilla Remand Public Notice fails to recognize the public’s role in public safety enabled through the Internet’s bilateral and multilateral communications channels.125 People, as content creators and public safety co-creators, depend on open and neutral access to the Internet to share public safety information through video, text, Geographical information System (“GIS”) and other formats.126 Public safety, like the internet and telephone networks, rests on a distributed model of universal service that recognizes that society is better off when everyone has access to communications networks.127 Net neutrality regulation that facilitates a “Whole Community” approach to public safety is consistent with Federal Emergency Management Administration’s(“FEMA”) community- based model for disaster preparation and response.128 The public, suppliers, hospitals, health care providers, government agencies, the media, and others need to access data transmitted through the Internet and be able to make and receive calls to protect public safety and ensure universal service.129 The Internet supports community-enabled public safety, which is improved through information exchange.130 For example, public sharing of videos of a fire when it first breaks out helps first responders identify the fire’s location, risks and characteristics, and can guide neighbors to evacuation routes. Public use of an open and neutral Internet facilitates the public’s
122 Id. 123 Id. 124 Id. 125 Sandoval, Reply Comments, supra note 21. at 4. 126 Catherine J.L. Sandoval, Net Neutrality Repeal Rips Holes in the Public Safety Net, supra note 33, at 954. 127 Id. 128 Id. at 955. 129 Written Statement of Commissioner Catherine J.K. Sandoval California Public Utilities Commission, supra note 4, at 53 130 Id. at 956. 26 role in public safety and complements the work of government agencies and firms with statutory and regulatory public safety duties. Net neutrality enables people to send and receive information free of ISP interference, enhancing our collective well-being and public safety.131 People with internet access are increasingly turning to social media to understand the COVID-19 virus, receive updates, and learn what can be done to stay safe.132 From January 1- March 22 Internet traffic is up 18% according to Cloudfare.133 “Citizens are increasingly using the internet for their own personal safety and are now expecting authorities to be doing the same.”134 “This in turn, increases the pressure on city authorities to engage in public safety through these same technologies.”135 This evolution is also reflected in the growing interaction between healthcare professionals and the public. “COVID-19 conversations around disease states have increased 1,000% among healthcare professionals (HCPs) and 2,500% among consumers, with both sharing the same types of content, according to a social listening study that ran from Jan. 1 through March 19, (2020).” 136 Pharmaceutical companies are asking for “COVID-19 social listening reports to find out what patients and HCPs are talking about and how they can address any concerns, said Julie Hurvitz Aliaga, CMI/Compas vice president of social media.”137 It is predicted that the use of “social media will evolve with the Covid-19 outbreak to provide information on social distancing and self-quarantine. It will be used by governments, public health authorities and medical experts to tell people where to get tested and what you should do if you're getting tested, all the way to rolling out a vaccine and ensuring that people have confidence in the vaccine and believe it is safe and effective.”138 Social media is already being used by citizens to reinforce collective action by applying social pressure to self-
131 Id. 132 Adam Clark Estes, Why the internet (probably) won’t break during the coronavirus pandemic, VOX, March 25, 2020, https://www.vox.com/recode/2020/3/25/21188391/internet-surge-traffic-coronavirus-pandemic 133 Id. 134 Public Safety Goes Personal, Ericsson, at 3, Nov. 2016, https://www.ericsson.com/en/reports-and- papers/consumerlab/reports/public-safety-goes-personal 135 Id. 136 Beth Snyder Bulik, Docs are talking about COVID-19 on social media—and pharma is looking for lessons, Apr 8, 2020,https://www.fiercepharma.com/marketing/social-listening-survey-finds-hcp-activity-way-up-around-covid- 19-and-pharma-looking-for. 137 Id. 138 Samuel Volkin, Social Media Fuels Spread of COVID-19 Information-and Misinformation, March 27, 2020, https://hub.jhu.edu/2020/03/27/mark-dredze-social-media-misinformation/. 27 quarantine and abide by government guidelines.139 People are also sharing a lot of useful information that you won't find on the news, like what grocery stores are open and well stocked, which have toilet paper, and which are rationing what people can buy.140 The Centers for Disease Control and Prevention adapts its messaging based on information people share on social media. For example, the agency noticed a spike in the number of people talking about a drug that was believed to help prevent or treat COVID-19. In response, the CDC created messaging warning the public of the dangers in using these unapproved drugs.141 Emergency medicine is informed by a robust body of research powered by the usual machinery––grant funding, institutional review boards, manuscript submission and revision. But, perhaps more than any other medical specialty, it is also is powered by social media. Many emergency clinicians stay current by reading medical blogs and listening to medical podcasts, some of which are produced by full-time teams of media professionals. If you want to know what’s happening in emergency rooms across the world, though, look on Facebook and Twitter.142 “Emergency and intensive care providers are deeply connected on social media platforms, and as COVID-19 swept through Seattle and into New York City, physicians caring for these patients started openly questioning received wisdom.”143 “While bedside clinicians were broadcasting perplexing findings caused by a novel pathogen, scientists who can elucidate the pathophysiology that will drive therapies began to take notice. The linkage of patient care to basic science, which until very recently would have taken months or years, is now happening over a period of hours.”144 COVID-19 has quickly evolved into the greatest public health
139 Id. 140 Id. 141 Id. 142 Reuben Strayer, Why Social Media Is Crucial for Frontline Physicians in the Fight against COVID-19 The disease spreads so fast and is so poorly understood that doctors and researchers are sharing their findings on Twitter and Facebook, not medical journals, SCIENTIFIC AMERICAN, April 3, 2020 https://blogs.scientificamerican.com/observations/why-social-media-is-crucial-for-frontline-physicians-in-the-fight- against-covid-19/. 143 Id. 144 Id. 28 challenge of a generation.145 “Social distancing appears to be slowing the spread of coronavirus in some areas but crisis won't end soon, officials say.”146 US internet and wireless providers have announced temporary measures to make getting online less expensive and onerous as enforced social distancing due to the new coronavirus forces more human interaction online. Chairman Pai’s voluntary pledge is a step forward, but a small one, and one that can’t help but remind us of all the tools this FCC has chosen not to use to protect the public interest.147 Karl Bode observed that because “the FCC neutered its authority to tell telecom giants what to do, the agency couldn't actually hold ISPs accountable should they refuse to adhere to the request or engage in bad behavior during a crisis.”148 Nor should the voluntary pledge allow the FCC to turn a blind eye to ISP practices such as sending consumers back to 20th century Internet speeds when downloading a ringtone was a big deal but video telemedicine was inconceivable on a mass scale.149 Strict measures that keep people physically separated could be in place for several months—perhaps more than a year.150 The FCC encouraged 60-day moratorium on not cutting off customers who don’t pay their bills will not outlast the longevity and the physical and economic impact of the virus. Even if some are able to get tested and go back to a physical workplace, the vulnerable among us, regardless of age, will be required to remain at home in isolation save for Internet access and their shelter mates. The FCC must consider the long-term needs of Americans who daily use the Internet to promote safety of life and property.
145 Volkin, supra note 138. 146 Steve Almasy, Jason Hanna and Christina Maxouris, Social distancing appears to be slowing the spread of coronavirus in some areas but crisis won't end soon, officials say, WSMV.COM, Mar 31, 2020, https://www.wsmv.com/news/us_world_news/social-distancing-appears-to-be-slowing-the-spread-of-coronavirus- in-some-areas-but-crisis/article_2e491acf-f6a6-5a6b-a536-bc7250a25fe2.html. 147 Dana Foberg, Disconnected During a Pandemic: Why ISPs Must Do Even More, FREE PRESS, March 17, 2020, https://www.freepress.net/our-response/expert-analysis/explainers/disconnected-during-pandemic-why-isps-must- do-even-more. 148 Karl Bode, Tone Deaf: Using COVID-19 As A Prop To Celebrate The Death Of Net Neutrality, TECH DIRT, Mar 31st 2020, https://www.techdirt.com/articles/20200326/10311844179/tone-deaf-using-covid-19-as-prop-to- celebrate-death-net-neutrality.shtml. 149 Verizon, The second generation and 2G network speeds, March 4, 2018, https://www.verizon.com/about/news/vzw/2014/05/a-day-in-the-life-with-2g-speed. 150 Joe Pinsker, The Four Possible Timelines for Life Returning to Normal, The coronavirus outbreak may last for a year or two, but some elements of pre-pandemic life will likely be won back in the meantime, THE ATLANTIC, March 26, 2020, https://www.theatlantic.com/family/archive/2020/03/coronavirus-social-distancing-over-back-to-normal/608752/. 29
As the D.C. Circuit observed in Mozilla v. FCC, “the harms from blocking and throttling during a public safety emergency are irreparable. People could be injured or die.151 COVID-19 is a slow-moving emergency for many, that also produces sudden and tragic outcomes. The Coronavirus resulted in the death of over 40,000 Americans as of April 20, 2020, and 154,000 people globally.152 As the orders to mitigate the Coronavirus pandemic demonstrate, public access to resources such as online learning as a substitute for in-person classes, online food delivery resources as a substitute for going into the community to buy or eat food, online medical resources and appointments, online psychology and counseling, and many others are critical to public safety. Online grocery shopping options such as Instacart, Amazon Fresh, meal and medication delivery and pickup options mediated through the Internet protect people from being exposed to the crowd in getting their supplies. Unfettered public access to an open and reliable Internet safeguards public health and safety. An Open, reliable Internet is crucial for people to stay at home and continue their work, study, and seek medical care first through telemedicine without risking the safety of their lives and those of others they may contact. Santa Clara University’s online classes rely on open access to the Internet to conduct and participate in classes and to access and distribute course and research materials. Santa Clara University’s response to the 2020 Coronavirus outbreak and spread exemplifies the pivotal role of public Internet access in protecting public safety. An open Internet free of ISP throttling, blocking, and paid priority is critical daily, not just during emergencies and pandemics. The open Internet can daily help medical issues not become public health issues. The open Internet daily provides access to resources, news, family and democratic dialogue that protects safety of life and property.
151 Mozilla v. FCC, 940 F.3d at 98 (Hawkins v. Defense Logistics Agency of the Dep’t of Defense, 99 F.3d 1149 (Table), *1 (10th Cir. 1996) (using imminent threat of death as an example of irreparable harm); New York v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990) (finding irreparable harm when the “[d]enial of benefits potentially subjected claimants to deteriorating health, and possibly even death”). 152 Moran Winsor, Coronavirus updates: US death toll tops 40,000 as stay-at-home protests continue, President Trump has spoken out in support of the protesters, ABC NEWS, April 20, 2020, https://abcnews.go.com/Health/coronavirus-updates-us-death-toll-tops-40000-stay/story?id=70237290; Tucker Reals, Sarah Lynch Baldwin, Victoria Albert, Justin Carissimo, Coronavirus Updates, U.S. Hits 700,000 Confirmed Cases , CBS N EWS .COM, April 18, 2020, https://www.cbsnews.com/live - updates/coronavirus - p a n d e m i c - c o v i d - 19- l a t e s t - n e w s - 2 0 2 0 - 04- 17/. 30
VI. The FCC’s Mozilla Remand Notice is Constitutionally Infirm for its Vagueness and Lack of Definition of the Category of Speech, Type of Speaker, and Time for Speaking it The FCC’s Mozilla Remand Public Notice question, “could the network improvements made possible by prioritization arrangement benefit public safety applications” suggests that allowing prioritizing arrangements would benefit the public safety “by enabling the more rapid, reliable transmission of public safety related communications during emergencies.”153 We will examine in more detail in section VII infra the assumptions and fallacies that underly the FCC’s conclusion that paid prioritization will result in network improvements. The questions in the FCC’s Mozilla Remand Public Notice seeks to regulate by considering the interests of only a narrow and undefined type of speech, category of speaker, and only for an indeterminate time period characterized by emergencies. The FCC’s approach appears to constitute speech regulation that confers benefits or detriments on the public based on the content of the speech, the speaker, and the timing of the speech, distinctions that raise constitutional concerns. The FCC’s lack of definitions indicate that the Commission’s proposed regulation is void for vagueness, and constitutionally infirm.154 The FCC’s Public Notice neutrality repeal suggests that it considers only a vague category of public safety speech worthy of regulatory consideration in determining whether to repeal net neutrality rules designed to protect speech transmitted through the Internet. “When speech is involved, rigorous adherence to those requirements [of notice and precision] is necessary to ensure that ambiguity does not chill protected speech.”155 What is the applicable level of scrutiny for the FCC’s suggested regulatory approach to net neutrality that considers only an undefined category of public safety communications? In Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I), the Court emphasized that “[a]s a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based.”156 In contrast, “laws that confer benefits or impose burdens on speech without reference to the ideas or views
153 FCC, Mozilla v. FCC Remand Public Notice, supra note 7, at 1-2. 154 See, F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (“the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972).”). 155 Id. 156 Turner Broad. Syst. v. FCC, 512 U.S. 622, 643 (1994) (Turner I). 31 expressed are in most instances content-neutral.”157 Strict scrutiny is applied to examine “regulations that suppress, disadvantage, or impose differential burden upon speech because of its content…Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny.”158 The "principal inquiry in determining content-neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys."159 The FCC’s proposal to bring within its regulatory focus public safety and prioritization arrangements share characteristics of content-based and content-neutral regulations. The lack of definitions and vagueness of the categories of speech considered for protection render the FCC’s proposals unconstitutionally vague. Does the FCC propose a content-based regulation? The first part of the FCC’s question– referring to “public safety related communications”–suggests that it would be a content-based regulation because the subject of the communication determines whether it is subject to regulatory attention. The FCC is addressing a type of speech–“public safety related communications”–and suggesting it take steps to enable “the more rapid, reliable transmission” of such type of speech. However, FCC does not define the type of speech or speaker to which its regulatory proposals refer. We are left to wonder, what speech would be given priority under the FCC’s proposals? What does the FCC consider “public safety related communications?” Which speakers would be allowed to utilize prioritizing arrangements? Would it be all government officials/agencies? Some government officials/agencies? Only the President? What about police departments? Fire departments? Hospitals? Private citizens? Community organizations? The public at large? Does the FCC’s proposal conscribe the ability of ISPs to choose which types or sources of Internet communication to prioritize and which to delay? Will consideration of the undefined category of public safety communications affect regulation of other Internet communications? None of these questions are answered because the FCC provided no definition of public safety communications.
157 Id. 158 Id. at 642. 159 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791).
32
Is it a content-neutral regulation? The temporal dimension of the FCC’s question–“during emergencies”–suggests that the FCC’s proposal can be analyzed under content-neutral regulation analysis because the prioritizing would occur during a specific time, emergencies. In order to survive First Amendment constitutional challenges, time, place, and manner restrictions must satisfy a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781 (1989): (1) The regulation must be content neutral. (2) It must be narrowly tailored to serve a significant governmental interest. (3) It must leave open ample alternative channels for communicating the speaker’s message.160 The FCC must demonstrate that its regulation is content neutral to bring its proposal within this standard. The FCC must articulate the parameters of any significant government interest it intends to serve by regulating only to protect or consider the consequences of its Internet governance rules for an undefined category of public safety communications during emergencies. The FCC leaves us to wonder if it refers to any and all emergencies? What types of emergencies? Personal emergencies? (e.g., having to communicate with your doctor online about an asthma attack, or personal emergencies that have public health and safety dimensions such as communicating via telemedicine about asthma symptoms during a crisis like the COVID-19 pandemic). Local emergencies? (e.g., accessing news reports of local flooding). State emergencies? Federal emergencies? Declared emergencies or those in the making? The lack of parameters indicates that the FCC does not propose a reasonable time, place, and manner regulation, and instead offers a time frame that is too indeterminate, applied to an unknown category of speakers and type of speech. We cannot answer the FCC’s question because it lacks definitions and is unconstitutionally vague. The FCC fails to articulate the elements necessary to survive constitutional muster. The FCC’s statutory responsibility to promote “safety of life and property through wireless and wireline communication” is broad. This duty is not confined to institutional public safety communications or people-to-government channels, but requires the FCC to regulate for the public good to promote safety of life and property. This statutory charge
160 See Ward v. Rock Against Racism, 491 U.S. 781.
33 indicates that the FCC cannot bear its burden of showing a significant government interest in considering the effect of net neutrality repeal only some undefined subset of communications and speakers.
VII. The FCC Lacks Foundation for Asserting Networks Improvements from Paid Priority
The FCC’s Mozilla Remand Public Notice asks whether prioritization arrangements may benefit public safety applications without explaining the foundation for its assertion that paid priority revenues will be directed to network improvements that will benefit all users or even a class of public safety communications.161 The FCC assumes that “eliminating the ban on paid prioritization will help spur innovation and experimentation, encourage network investment, and better allocate the costs of infrastructure, likely benefiting consumers and competition.”162 Based on the above assumption, the FCC also finds that “ eliminating the ban on paid prioritization arrangements could lead to lower prices for consumers for broadband Internet access service” and that such action ”benefits low-income communities and non-profits.”163 The FCC rejected the argument that the benefits of eliminating the paid prioritization ban must be “uniform across providers or geographic areas.” The FCC fails to examine the effects of lifting the ban on latency-sensitive communications. These conclusions were reached without consideration of public safety or the FCC’s statutory mission to promote safety of life and property. The FCC does not fulfill that duty by asking whether prioritization arrangements may benefit public safety applications without discussing any basis for its conclusion that prioritization arrangements yields benefits or its consideration of harms to safety of life and property from such prioritization arrangements. “Complete absence of any discussion of a statutorily mandated factor renders an agency decision arbitrary and capricious under the APA.”164 The FCC’s Internet Freedom Order gave ISPs complete discretion to assign priority. The FCC left other public Internet traffic using BIAS with no safeguards. The FCC argues that ISPs
161 In the Matter of Restoring Internet Freedom, 33 FCC Rcd. 311, at 253. 162 Id. 163 Id. at n. 914. 164 Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C.Cir. 2004). 34 have incentives to avoid harms to public welfare, relying instead on “market forces, public opprobrium, and enforcement of the consumer protection laws.”165 The Commission concluded that “any remaining unaddressed harms” were “small relative to the costs of implementing more heavy-handed regulation.” The D.C. Circuit observed that such a “Rorschachian speculation is hardly the focused and specific study of public safety implications that the law requires.”166 The FCC’s Mozilla Remand Public Notice repeats its conclusion that “latency-sensitive applications would not typically degrade other applications on the same network, any non- profits, libraries, or independent content providers who declined to pay for prioritization would not be harmed.”167 The FCC’s Internet Freedom Order cited as the basis for this conclusion AT&T’s explanation that “[l]ast-mile access is not a zero-sum game, and prioritizing the packets for latency sensitive applications will not typically degrade other applications sharing the same infrastructure,” such as email, software updates, or cached video.168 “Because of these practical limits on paid prioritization, we reject the argument that non-profits and independent and diverse content producers, who may be less likely to need QoS guarantees, will be harmed by lifting the ban,” the Internet Freedom Order concluded. “The Internet Freedom Order neither defines the range of “typical” degradation anticipated, nor discusses paid priority’s potential to degrade other Internet applications deployed by public safety agencies, critical infrastructure, courts, education, businesses, and families.”169 The FCC’s conclusion relied on AT&T’s assertion that paid priority will not typically degrade other applications sharing the same infrastructure,” such as email, software updates, or cached video.170 This short list fails to account for the range of common Internet applications. “Modern firefighters rely on real-time geographic information system (“GIS”) mapping to monitor fires and coordinate emergency response, track information, and save lives.”171 Net neutrality repeal
165 FCC, Internet Freedom Order, supra note 3, at ¶323. 166 Id. at 100. 167 FCC, Mozilla Remand Public Notice, supra note 7, at 2. 168 FCC, Internet Freedom Order, supra note 3, at ¶258. 169 Brief for Professors of Administrative, Communications, Energy, Antitrust, Contract Law, and Policy as Amici Curiae Supporting Petitioner at 4, Mozilla, Corp. v. FCC, No. 18-1051, at 9 (Aug. 27, 2018) [hereinafter Amici Brief, Professors of Administrative, Communications, Energy, Contract Law, and Policy]. 170 FCC, Internet Freedom Order, supra note 3, at ¶258. 171 Amici Brief, Professors of Administrative, Communications, Energy, Contract Law, and Policy, supra note { at 11-12. 35 left public safety agencies unable to rely upon GIS and other Internet applications that require more bandwidth than an email, software updates, or cached video.172 Santa Clara University, like hundreds of other institutions of higher education, is now running classes through Zoom video conferencing, YouTube, and research applications other than email, software updates, or cached video. SCU depends on synchronous high-bandwidth applications including video conferencing, and uses other applications that support layers of data analysis. During the pandemic and whenever SCU law is running online classes and facilitating research and collaboration from distributed locations, students, faculty, and staff must access to the full range of Internet resources from home. Degraded connections will likely make high- bandwidth applications such as videoconferencing fail, rendering students Internet dropouts at the hands of ISPs and the FCC who allowed the ISPs to throttle the content and users of the ISP’s choice. Santa Clara University has been participating in a collaborative to use its 3d printers to make shields for first responders. The Internet facilitates SCU’s collaboration with the Maker Nexus to 3d rint, assemble, disinfect, and supply the Valley Medical Center Foundation with face shields.173 Internet-enabled research and manufacturing efforts are critical to safety of life, yet they don’t seem to fit within the FCC’s construct of “public safety communications” worthy of regulatory inquiry or consideration. Based on the faulty premise that the FCC should only be concerned about whether s paid priority will typically degrade email, cached video, and software updates, the FCC concluded that “[b]ecause of these practical limits on paid prioritization, we reject the argument that non- profits and independent and diverse content producers, who may be less likely to need QoS guarantees, will be harmed by lifting the ban.”174 The FCC offers no foundation for its conclusion that such Internet users may not wish quality of service guarantees (QoS) or safeguards from ISP manipulation of best efforts Internet traffic to favor some traffic with whom they have made priority deals while slowing others.
172 Id. 173 SCU Maker Lab Joins Local Effort to Produce Medical Face Shields, April 8, 2020, https://www.scu.edu/engineering/stories/scu-maker-lab-joins-local-effort-to-produce-medical-face-shields.html. 174 FCC Internet Freedom Order, supra note 3, at ¶ 258. 36
FCC repeal of net neutrality rules allows ISPs to suspend best efforts for people who have not signed up for an individually negotiated or customized service with QoS guarantees. The FCC subjects non-profits and independent and diverse content producers including students, faculty, small businesses, tribes, and non-profits to regulatory-constructed risk. The FCC’s repeal of net neutrality rules would allow an ISP to demand that Santa Clara researchers and students working from home to supplement their limited maker lab time during COVID-19 pay extra not to be reduced to slower or 2G speeds as Verizon did to the Santa Clara County fire department.175 The FCC ignores the possibility that non-profits may be critical to public safety such as by providing counseling that may stem violence. For example, Future without Violence provides webinars that address help available for victims of domestic violence and prevent them from becoming future abuser.176 In trying to identify an undefined subset of Internet communications as the focus of the Mozilla remand, the FCC fails to understand that a variety of communications from, to, and among the public, through a wide range of applications including Zoom, Youtube, WhatsApp, WebEx, Instacart, and many others are vital to public safety, and to protect the safety of life and property. Access to the whole Internet supports America’s safety, the well-being and prosperity of Americans, and is critical to safety of life and property, the statutory charge that should be the focus of this remand. VIII. Internet Applications Important to Safety of Life Such as Videoconferencing are Sensitive to Degradation or Failure due to FCC-Permitted ISP Downgrades
Video conferencing will often downgrade the video quality before it fails completely. The question is how far the video conferencing software will lower quality before it fails. Reduced quality may leave the user with nothing more than a blurry picture of someone's face or an inaudible signal. According to Cisco, their Quality of Service (QoS) standards for video conferencing are: • ≤ 150 ms of one-way latency from mouth to ear (per the ITU G.114 standard). • ≤ 30 ms jitter.
175 Addendum to Brief for Government Petitioners, Mozilla Corp. v. FCC, No. 18-1051 (Aug. 20, 2018). 176 Webinars, Futures Without Violence, (last visited Aril 20 2020), https://www.futureswithoutviolence.org/resources-events/webinars-2/. 37
• ≤ 1 percent packet loss. • Minimum bandwidth guarantee is videoconferencing session + 20 percent. For example, a 384-kbps videoconferencing session requires 460 kbps guaranteed priority bandwidth.177 ISP paid prioritization may produce latency and jitter for video conferencing for those who don’t pay for priority. Latency is travel time between one user and another. The primary way that paid prioritization would likely affect users is inefficient pathing - higher priority traffic gets sent on the shortest possible route, while lower priority traffic would be sent on larger but less direct trunks that increase signal latency. Jitter is the variation between packet latency from packet to packet. Jitter is more likely to increase as packets travel through an ISP's systems that deprioritize that IP address. Packets getting booted down to a lower prioritization tier means that they have to wait in line as they pass through that ISP's routers, which increases the latency deviation as some packets move straight through and others have to wait. Cisco explains jitter and how it impacts VoIP calls, a process that also applies to video.178 Since jitter already increases on impacted networks, paid prioritization could exacerbate that problem by failing to send packets the ISP designates as "low-priority" within the window for which the software can buffer.This leads to delays and dropped packets as packets time out in transmission. If jitter, latency, or packet loss increases too much, it can lead to choppy video, dropped frames, and failure of the signal entirely. Jitter is usually not a problem until it's a big problem. Software can compensate for jitter up to a point. Once jitter passes beyond the threshold for which the software can compensate, the signal degrades very quickly. Any sort of paid prioritization will increase latency and jitter for non-prioritized traffic. Video conferencing, VoIP, and streaming services are designed to withstand a certain degree of signal degradation compensation, but paid priority could reduce those services below the established thresholds. Latency arises even with very good Internet connections, and the software is designed to handle it, but the degradation is not linear. When latency is excessive, the entire signal starts to fall apart and then the whole thing keels over and dies.
177 Chris Lewis, Steve Pickavance, Implementing Quality of Service Over Cisco MPLS VPNs, CISCO, May 26, 2006, https://www.ciscopress.com/articles/article.asp?p=471096&seqNum=6). 178 Understanding Jitter in Packet Voice Networks (Cisco IOS Platforms), CISCO, February 2, 2006, https://www.cisco.com/c/en/us/support/docs/voice/voice-quality/18902-jitter-packet-voice.html. 38
Paid prioritization will likely push those not on the fast lanes closer to the point of signal degradation. Under these circumstances, other issues such as congestion or network damage (all things that would be very common in a disaster situation) would have a much higher chance of causing signal loss. For systems that need to be robust and reliable, critical infrastructure and the distributed systems, workers, and supply chains on which they rely, ISP paid prioritization would be a serious harm to the reliability and robustness. IX. Cybersecurity and Public Safety Issued Raised by the FCC’s Proposals to Offer Regulatory Protection Only to an Undefined Category of Public Safety Communications Following its conclusion that prioritizing packets for latency-sensitive applications would not typically degrade other applications on the same network such as emails, cached video, and software udates,, the FCC concluded that any non-profits, libraries, or independent content providers who declined to pay for prioritization would not be harmed. Following this premise, the FCC asks “Would this same logic also apply to public safety communications? Do broadband providers have policies in place that facilitate or prioritize public safety communications?”179 Without a clear definition of “Public Safety Communications” from the FCC or any ISP, we can only speculate on how prioritizing this category would function, raising an APA about the lack of notice of the FCC’s contemplated rulemaking. To effectuate priority for “Public Safety Communications,” data in this category would need to have a plaintext tag identifying them as “Public Safety Communications” if dynamic IP addressing is used, use hardware-level identification by MAC address, or would need a dedicated Internet-facing IP address. In any case, the system would have to be a “whitelist” system, where ISP routers would compare traffic to a pre-approved list of “Public Safety Communications” traffic or destinations, and move validated traffic to a higher priority lane. A whitelist process could create a security threat for emergency services and for the integrity of the “Public Safety Communications” system. Loaded at every node for every ISP would be a list of approved “public safety” IP or MAC addresses, which would provide a ready- made list of targets for Distributed Denial of Service attacks or more targeted security penetration efforts.
179 FCC, Mozilla Remand Public Notice, supra note 7, at 2. 39
Alternatively, an attacker could create a malicious update to the whitelist that completely wipes the whitelist, instantly knocking all “Public Safety Communications” traffic out of priority. A traffic-filtering system would need to have the filter rules either publicly available or stored on ISP systems, which could easily be reverse-engineered to target and disrupt that same labeled “Public Safety Communications” traffic. Either way, this whitelist would represent an enormous and unavoidable security risk, as it could not be stored centrally or in a protected system in order to function as a traffic shaping rule set at every node for every ISP. This system would require every ISP node to have a copy of the rules or valid addresses, which means all an attacker would need to do is breach one node to obtain the means to cripple the “Public Safety Communications” system. Any attempt to centralize this processing would likely introduce enough latency to disrupt real-time systems, removing any benefit to a priority traffic lane. Any effort to keep the rules or valid address lists secret would only survive as long as every node for every ISP remains completely secure,180 and once the system is breached, instead of just prioritizing public safety traffic, it would also function as a highly effective means of targeting and disabling the “Public Safety Communications” system. This issue also applies beyond public safety to any whitelisted priority traffic system, including healthcare systems. The whitelist system would also hinder organizational flexibility and potentially create inter-jurisdictional and inter-agency communication issues, as well as stifle innovation and competition in the market. If an IP/MAC address whitelist is used, new Internet-facing equipment could not be immediately added as it would need to be approved and added to the whitelist for every ISP node in order to be allowed into the “Public Safety Communications” priority traffic lane. Any node without the new device in its whitelist would deprioritize the traffic, creating latency, jitter, and dropped packets. As it would be impractical for every ISP node to carry the whitelist for every system needing access to the “Public Safety Communications” priority lane, this creates issues if a system from one region moved into another region, or even sending “Public Safety Communications” data long-distance. Without the ISP nodes in the area having that device on their whitelist, the packets would suddenly find themselves shunted into the lower priority traffic lane when they leave their home area. If a packet-based tag is used to indicate “Public Safety Communications” traffic, then any
180 TSA Travel Master Sentry Keys, GITHUB, last visited April 20, 2020, https://github.com/Xyl2k/TSA-Travel- Sentry-master-keys. 40 new system would need to have the system tag that data, or such tags could be preset before the system is connected to the Internet. This system avoids the issue of long-distance transmissions or whitelist additions, but creates a massive barrier to entry for new products and companies. Any company that already has the resources to produce systems that come with the capacity to send data marked as “Public Safety Communications” would have a massive advantage in the market, and would stifle the very innovation that the FCC purports their order will promote. Moreover, the concept of a whitelist of a narrow and undefined category of “Public Safety Communications” misses the public role in public safety. As demonstrated during the COVID-19 pandemic, Internet shopping promotes public health and safety by allowing more people to stay inside and shielding particularly vulnerable people from virus spread. Video conferencing, telemedicine, research applications, Internet-facilitated collaboration, Internet chats with loved ones that expose problems in nursing homes all protect safety of life and property. Turning the Internet to ISP control through FCC regulatory decisions puts cybersecurity and public safety at risks. The FCC’s net neutrality repeal opened new cybersecurity risks. Professor Sandoval’s article, Cybersecurity Paradigm Shift: The Risks of Net Neutrality Repeal to Energy Reliability, Public Safety, and Climate Change Solutions observes that “no software patch or firewall protects a user from an ISP whose job it is to transit that user’s content to and from the internet.181 “Once data traffic crosses from the network of the energy operator or resource across the firewall to the ISP, the traffic is under ISP control. The ISP controls the user’s traffic as it crosses the ISP-controlled gateway to the internet.”182 “Cybersecurity strategies to date focused on firewalls, intrusion detection, and other strategies to keep hackers out. Users cannot throw a firewall over their own ISP.”183 The FCC must recognize and analyze the cybersecurity and public safety risks paid priority creates.
181 Catherine J.K. Sandoval, Cybersecurity Paradigm Shift: The Risks of Net Neutrality Repeal to Energy Reliability, Public Safety, and Climate Change Solutions, 10 SAN DIEGO J. CLIMATE & ENERGY LAW 91, 99 (2019). 182 Id. (citing Cf. Charles Kelly & Philip Carden, Firewalls: Securing NT Networks from Internet Intruders, IT PRO TODAY (Oct. 31, 1996), https://www.itprotoday.com/security/firewallssecuring-nt-networks-internet-intruders [https://perma.cc/53J6-XG7C] (“[A] network firewall is a hardware/software barrier between a corporate network and the Internet.”; Verizon v. FCC, 740 F.3d 623, 646 (“[T]here appears little dispute that broadband providers have the technological ability to distinguish between and discriminate against certain types of Internet traffic.”). 183 Id. 41
X. Antitrust and Consumer Protection Law Provide No Remedy for Harms to Safety of Life and Property Caused by ISP Conduct and Net Neutrality Repeal The Internet Freedom Order argues that any existing antitrust and consumer protection laws are well-suited to address Internet openness concerns because they apply to the whole of the Internet ecosystem, including edge providers, thereby avoiding tilting the playing field against ISPs and causing economic distortions by regulating only one side of business transactions on the Internet.184 The FCC failed to consider that antitrust and consumer protection law do not address public safety protection and provide no remedy to harms to public safety.185 “The Internet Freedom Order fails to discuss the legal principle that antitrust and unfair competition law remedy only injuries to competition,186 a limitation [Professor Sandoval’s] August 2017 Reply Comments to the FCC highlighted.”187 “The FCC failed to consider the need to remedy non-competition harms resulting from its decision such as those to energy reliability, safety, rates, and the environment, reflecting arbitrary and capricious decision-making under the APA.”188 The COVID-19 pandemic and widespread Shelter in Place Orders which may last for months, and Shelter in Place recommendations for vulnerable people which could last for much longer emphasize the ongoing need for Internet access of the user’s choice. ISP throttling which
184 Restoring Internet Freedom, supra note { at ¶ 140. 185 See Sandoval, reply Comments, supra n. 4 at n.236 (citing Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990) (holding that antitrust laws were intended to prevent and protect against “antitrust injury” “attributable to an anti-competitive aspect of the practice under scrutiny”)); Brief for Professors of Administrative, Communications, Energy, Antitrust, Contract Law, and Policy as Amici Curiae Supporting Petitioner at 4, Mozilla, Corp. v. FCC, No. 18-1051 (Aug. 27, 2018) [hereinafter Amici Brief, Professors of Administrative, Communications, Energy, Contract Law, and Policy] (citing Nuvio Corp. v. FCC, 473 F.3d 302, 307 (D.C. Cir. 2006)) (discussing the FCC’s statutory duty to promote public safety). This amicus brief was prepared and submitted by Professor Catherine J.K. Sandoval, Professor Allen S. Hammond, IV, Professor Anthony Chase, and Dr. Carolyn Byerly, with the assistance of SCU Law student Luke Batty, Professor Sandoval’s research assistant. See also Catherine Sandoval, Reply Comments, In the Matter of Restoring Internet Freedom, WC Docket No. 17-108, at 25, 41, 49, 50 (Aug. 30, 2017) [hereinafter Sandoval, Reply Comments] (regarding the public safety role of the open Internet); Reply Brief of Internet Association, Reply Brief of Internet Association et al., in Support of Petitioners at 12, Mozilla v. FCC, No. 18-1051 (D.C. Cir.2018)(citing Br. of Professors of Admin., Commc’ns, Energy, Antitrust, and Contract Law and Policy 7–8) (“Consequently, antitrust laws are ill-suited to address harms to consumers, free speech, investment, and innovation in the net neutrality context.”). 186 Sandoval, Internet Freedom Reply Comments, supra note 46, at 34 (citing Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. at 334; Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977) (holding that an antitrust plaintiff must prove injury which reflects the anticompetitive effect either of the alleged violation or of anticompetitive acts made possible by the alleged violation of antitrust laws); A.I.B. Express, Inc. v. FedEx Corp.. 358 F. Supp. 2d at 246 (“The injury should reflect the anticompetitive effect either of the violation orof the anticompetitive acts made possible by the violation.”). 187 Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, supra note 32 at 63. 188 Id. 42 makes Internet applications including video conferencing and telemedicine fail are not the type of harm to competition that antitrust law remedies. The FCC Mozilla Remand Public Notice asks whether “the Commission and other governmental authorities have other tools at their disposal that are better suited to addressing potential public safety concerns than classification of broadband as a Title II service?”189 If the FCC is referring to antitrust law, the FCC must recognize that antitrust and unfair competition law offer no remedy for injuries other than harm to competition. ISPs may argue they did not deceive consumers if they disclose that consumers will be slowed at certain thresholds or at the ISPs discretion due to paid priority, leaving consumers without a choice or a remedy if the disclosure was proper.190 “Consumer protection laws offer no safe haven for consumers if the ISP limits its promises. ISPs who do not promise “‘unfettered 314 access to all the content, services, and applications that the internet has to offer’” or similarly broad terms may limit exposure to FTC Act deceptive conduct claims by tailoring their promises.”191 “ISPs who never promise to safeguard consumers from slowdowns to accommodate higher paying customers, and never promise minimum speeds or performance may cite their limited promises to defend against consumer protection and FTC Act complaints. ISP terms of service may also limit consumer claims for breach of contract.”192 State laws such as California’s S.B. 822 offer protection from ISP blocking, throttling, and paid priority, and selective zero-rating, but that law is on hold during the pendency of the Mozilla v. FCC litigation.193 Harm to safety of life and property cannot be fully remedied post facto and requires proactive regulation to mitigate risks. The FCC should adopt enforceable net neutrality laws, which requires Title II classification per Verizon v. FCC.194
189 FCC, Mozilla v. FCC Remand Public Notice, supra note 7, at 2. 190 Catherine J.K. Sandoval, Disclosure, Deception, and Deep-Packet Inspection: The Role of the Federal Trade Commission Act’s Deceptive Conduct Prohibitions in the Net Neutrality Debate, 78 FORDHAM L. REV. 641, 645 (2009). 191 Id. 192 Id. 193 Brian Fung, California agrees not to enforce its net neutrality law as Justice Dept. puts lawsuit on hold, Washington Post, Oct. 26, 2018, https://www.washingtonpost.com/technology/2018/10/26/california-agrees-not- enforce-its-net-neutrality-law-trumps-doj-puts-its-lawsuit-hold/. 194 Verizon v. FCC, 740 F.3d 623, 655–56 (D.C. Cir. 2014) (overturning FCC net neutrality rules as imposing common carrier obligations despite classifying ISPs as information service providers and not common carriers under Title II). 43
XI. The FCC Must Examine ISP Terms and Practices that Reduce Users to 2G Speeds as a Risk to Safety of Life and Property During the COVID-19 State of Emergency, many ISPs have taken the FCC’s pledge not to terminate customer service for 60 days for non-bill payment, to waive later fees, and to enable hot spots.195 Less than one month into the pledge rollout, many Americans are complaining that their carrier terminated service for non-payment or late payment, and demanded large upfront fees to restart service even when the subscriber has lost their job.196 The FCC reported that it does not keep complaints about customer disconnection.197 The FCC failed to explain why this consumer protection role is not within its responsibility. The FCC must analyze and address consumer complaints about ISP conduct before deciding on the issues in the Mozilla v. FCC remand. “New Jersey Gov. Phil Murphy has taken matters into his own hands, banning phone and internet companies from disconnecting people during the pandemic.”198 Other states including California should consider similar measures to help people maintain access to telemedicine and other Internet-enabled resources that contribute to safety of life and property. ISP voluntary pledges to open Wi-Fi hot spots are not a panacea to the digital divide. Hot spots at locations outside of residences fail to address the constraints millions of us face in Coronavirus lockdown. Shelter in place orders prohibit students from sitting in front of a stranger’s curb to access Wi-Fi hot spots for hours at a time to participate in online classes or take an exam. Today, 27% of adults do not have broadband Internet access at home except that provided by their mobile phone, according to Pew Research.199 African-American and Latino children and families are more likely to rely on mobile phones only to access the Internet, Pew reports.200 FCC policies that allow ISPs to discriminate between Internet users and sites and tolerate weeks of throttling to twentieth century speeds undercut equity, public health and safety.
195 FCC, Keep Americans Connected, April 16, 2020, https://www.fcc.gov/keep-americans-connected. 196 Claire Atkinson and Leticia Miranda, Americans are losing service despite FCC pledge not to disconnect, Yahoo News, April 15, 2020, https://news.yahoo.com/americans-losing-despite-fcc-pledge-224900328.html. 197 Id. (“The agency doesn't keep records of complaints about disconnection.”) 198 Id. 199 Pew Research Center, Mobile Technology and Home Broadband 2019, supra note 63. 200 Pew Research Center, Smartphones help blacks, Hispanics bridge some – but not all – digital gaps with whites, Aug. 20, 2019, https://www.pewresearch.org/fact-tank/2019/08/20/smartphones-help-blacks-hispanics-bridge-some- but-not-all-digital-gaps-with-whites/. 44
More research is needed on the overlay of COVID-19 vulnerability to poor outcomes including death among African-Americans, Latinos, and Native Americans, and the digital divide including ISP behavior that limits access to data and applications. Evidence is emerging that COVID-19 mortality rates are higher for each of these communities, compounded by preexisting health conditions, limited access to medical care, low-incomes.201 Lack of access to robust Internet services and facilities merits more analysis as a compounding factor that complicates health, social welfare, and public safety access during the COVID-19 pandemic. Many ISPs continue to post on their website during the COVID-19 State of Emergency that they engage in the same tye of throttling that Verizon imposed on the Santa Clara County Fire Department when the user reaches a certain amount of date. The data limit varies but it means that customers throttled by their ISP to 2G speeds or lower will not be able to gain or sustain access to 21st century Internet applications such as telemedicine and video conferencing. In 2015, the FCC fined AT&T $100 million for violations of the 2010 transparency rules for slowing customers on “unlimited” data plans to speeds where mapping and other common applications would not work.202 In its 2017 brief to the Ninth Circuit, the FCC noted that a “majority of the FCC's current commissioners dissented from the decision to issue the NAL, see id. at 6629–43, and no further action has been taken on it.”203 Today, the FCC is actively ignoring this ISP practice that diminishes access to telemedicine and other services during a pandemic. The FCC fails to recognize this level of throttling as an unreasonable network management practice that would have been actionable under the 2015 Open Internet rules. T-Mobile’s website states that for its prepaid plans, “During congestion, the small fraction of customers using >50GB/mo. may notice reduced speeds until next bill cycle due to data prioritization.”204 The page advertising available speeds and prices does not define the
201 The Pandemic’s Toll on the Native American Community, AMANPOUR & CO., PBS, April 17, 2020, http://www.pbs.org/wnet/amanpour-and-company/video/the-pandemics-toll-on-the-native-american-community/; COVID-19 'disproportionately' killing African Americans, Latinos: Analyst, MSN NEWS, April 14, 2020, https://www.msn.com/en-us/news/world/covid-19-disproportionately-killing-african-americans-latinos-analyst/ar- BB12CTeH. 202 In the Matter of AT&T Mobility, LLC., 30 FCC Rcd. 6613 (2015). 203 Brief of the Federal Communications Commission as Amicus Curiae in Support of Plaintiff-Appellee, FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. AT&T MOBILITY LLC, , 2017 WL 2398744, 3 No. 15-16585 (Ninth Circuit, May 30, 2017). 204 T-Mobile, There’s a Prepaid Phone Plan for Everyone, (last visited April 20, 2020), https://prepaid.t- mobile.com/prepaid- plans?cmpid=ADV_PB_C_EVGRNPRPD_43700052592014951_81089047167335&msclkid=e6bd9e3158621caf40 5ac0af6495fc3c&utm_source=bing&utm_medium=cpc&utm_campaign=Core_Prepaid_Brand_Base_DMT_Bing_B 45 reduced speeds the consumer will experience. Neither does it discuss how reduced speeds will affect customer ability to use Internet applications or services. The smaller font and lack of explanation of the reduced speeds raises compliance issues under the Federal Trade Commission Act’s Deceptive Conduct provisions.205 It also raises questions about unreasonable network management as T-Mobile sends an unknown number of users back to the 20th century Internet standard, rendering the subscriber incapable of accessing video classes, telemedicine and many other services when throttled. Table A, T-Mobile Prepaid Plan:
Similarly, Verizon’s prepaid data plans state in small print, “In times of congestion, your data may be temporarily slower than other traffic. DVD-quality streaming (up to 480p) on smartphones. $30, $35 and $45 plans: Once high-speed data is used (including Mobile Hotspot), you will have 2G speeds the remainder of the month. Your data experience and functionality of some data applications such as streaming video or audio may be impacted unless you purchase
MM_English_TMO&utm_term=%2Bt%20%2Bmobile%20%2Bprepaid%20%2Bplans&utm_content=Core_Prepaid _Brand_Base_DMT_Bing_BMM_English_TMO_Prepaid%20Plans&gclid=CILax7Cg- OgCFQKqxQIdDtAKDQ&gclsrc=ds. 205 Sandoval, Disclosure, Deception, and Deep-Packet Inspection: The Role of the Federal Trade Commission Act’s Deceptive Conduct Prohibitions in theNet Neutrality Debate, supra note {. 46 additional data. Additional taxes and fees may apply.”206 Verizon’s terms offer no place on which the plan shopper or subscriber can click or access to find information about 2G speeds. This lack of disclosure again raises issues under the Federal Trade Commission Act’s deceptive conduct provisions. Additionally, these policies and practices raise reasonable network management concerns as subscribers are rendered incapable of accessing many applications that cannot run on 2G speeds. Table B, Verizon Prepaid Plans:
AT&T’s prepaid data plans state in small print for its 2G and 8G plans, “After 2GB, data speeds are slowed to a maximum of 128Kbps for the rest of the term.”207 AT&T offers no explanation on the face of this offer regarding what applications or services will not work when users are slowed to 128Kbps for the rest of the term. AT&T does not limit this practice to times of congestion, but places users in a 20th century Internet penalty box from which they cannot escape until the next billing term. These practices raise concerns under the Federal Trade
206 Verizon, Prepaid Phone Plans, April 20, 2020, https://www.verizonwireless.com/prepaid/?ds_rl=1035790&ds_rl=1275402&cmp=KNC-C-HQ-PRO-R-BP-NONE- Prepaid60back-2K0PX0-PX-BIN- 71700000010397525&msclkid=ddc1c137bf8011824eb79f4e00e43911&gclid=CI6ukMfTsugCFTuhZQodNVkOOw &gclsrc=ds. 207 Choose your AT&T Prepaid Plan, April 20, 2020, https://www.att.com/buy/wireless/prepaid/plandetails. 47
Commission Act’s deceptive conduct provisions. They merit scrutiny as an unreasonable network management practice. Slowing people for days or weeks at a time to 128Kbps, a standard slow even for 2G speeds, renders these customers incapable of telemedicine applications during the COVID-19 pandemic. Table C, AT&T Prepaid Plans:
These are but a sample of the contract terms posted on the web today by several ISPs purporting to allow the ISP to slow users who consume more than a designated amount of data to 2G speeds, slow speeds, or 128 Kbps. That speed substantially compromises Internet access: 128Kbps is 27.8% of the speed needed to maintain access to Zoom video conferencing. Some ISPs state that they set the threshold as one reached by a small minority of its users. COVID-19 and Shelter in Place rules have changed the paradigm for Internet use. Santa Clara University, like many colleges, uses Zoom for online legal education to deliver its Critical Infrastructure services during the COVID-19 State of Emergency. Not all students have a wired Internet connection or the ability to order or pay for wired Internet where they are sheltering during the pandemic. Even for students, faculty, and staff who have wired Internet, outages and intermittency have forced many in our campus community to switch to mobile phones as a hotspot to support computer access during online classes. A speed test during of an Android Galaxy Note 9 cellphone on Zoom found:
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A 30-minute Zoom video conference uses 0.35 GB of mobile data use per half-hour, rounded up to 0.4 GB per half-hour = 0.8 GB per hour
For every 10 hours of class conducted through video conferencing using a Android Galaxy Note 9 consumes 8 Gbs of data When using the Android Galaxy Note 9 as a hot spot, a 30-minute Zoom video conference uses 0.56 GB of mobile data use per half-hour rounded up to 0.6 GB per half- hour = 1.2 GB per hour
For every 10 hours of class on video conferencing using an Android phone as a Mobile hotpot uses 12 Gbs of data
15 hours a week of class using Zoom video conferencing through an Android phone as a Mobile hot spot will use approx. 18 Gb of data
With other research projects and necessary meetings with students or professors to prepare for presentations, many law students will use approximately 50 GB of data every two weeks if using an Android phone as a Mobile hot spot to access online education.
Many high school classes meet 5-6 hours a day.208 Student having to use their mobile phone to access online education would hit a 50 GB threshold in a little over a week of full-time classes. The FCC has the opportunity through this rulemaking and its authority to stop ISPs from slowing users to speeds incapable of conducting telemedicine or video conferencing. States may also assert their authority under the police power to protect the health, safety, and welfare of the people in the state to limit ISP conduct that renders unusable telemedicine and other services essential to public health and safety. ISP practices of slowing users to 2G or lower speeds when they exceed a data threshold highlight the unreasonableness of paid priority. ISPs have argued for the right to seek paid priority from subscribers and Internet content providers, regardless of the bandwidth consumed by the application or the application’s latency or jitter tolerance. ISPs and the FCC have failed to explain how they reconcile permitting ISPs to speed some applications that pay for priority regardless of their impact on network resources, yet allow ISPs to slow subscribers who used bandwidth intensive applications, even if the network would accommodate that use.
208 Table 5.14. Number of instructional days and hours in the school year, by state: 2018, National Center for Education Statistics, https://nces.ed.gov/programs/statereform/tab5_14.asp.
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Paid priority is not a strategy to manage network congestion but a tactic to extract extra payments from subscribers, sites, and content providers. Subscribers may face the double squeeze of paying for priority or have sites pay for priority to reach them, yet be slowed by their ISP when they use bandwidth intensive programs such as those employed in telemedicine and online education. XII. Conclusion The FCC’s repeal of the ban on ISP blocking, throttling, paid priority, and unreasonable network management threatens public safety, public health, and Critical Infrastructure sectors including electric, gas, water, and communication utilities. The harms resulting from blocking and throttling during a public safety emergency, like those arising from the current pandemic, are irreparable.209 The FCC retains a statutory duty to promote the “safety of life and property through wireless and wireline communications.”210 Fulfilling this duty demands consideration of the broad range of Internet uses and users that affect and promote safety of life and property. The FCC’s analysis must put the public at the center of public safety regulation. The COVID-19 pandemic underscores the importance of the Internet to safety of life and property. Adopting enforceable rules under Title II classification to prevent ISP blocking, throttling, paid priority, and unreasonable network management remains necessary to protect safety of life and property.
Respectfully submitted, //Catherine J.K. Sandoval// Catherine Sandoval Co-Director, Broadband Institute of California Associate Professor Santa Clara University School [email protected] April 20, 2020
209 Mozilla Corp. v. FCC, 940 F.3d at 98. 210 47 USC 151. 50