UNIVERSITY OF PITTSBURGH LAW REVIEW Vol. 80 ● Summer 2019 NET NEUTRALITY REPEAL RIPS HOLES IN THE PUBLIC SAFETY NET Catherine J.K. Sandoval ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2019.658 http://lawreview.law.pitt.edu This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D- Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. NET NEUTRALITY REPEAL RIPS HOLES IN THE PUBLIC SAFETY NET Catherine J.K. Sandoval* I. PUBLIC SAFETY PARADIGMS IN THE INTERNET AGE A. The Public’s Role in Public Safety This Article contends that the Federal Communications Commission’s (“FCC”) failure to address the public safety risks of repealing net neutrality rules in its January 2018 “Internet Freedom Order” ignores the FCC’s statutory mission to promote public safety and violates the Administrative Procedures Act (“APA”).1 Net neutrality is “the principle that broadband providers must treat all internet traffic the same regardless of source.”2 The Internet Freedom Order fails to address the public safety rationale for the bright-line net neutrality rules previously adopted in the FCC’s 2015 Open Internet Order (“2015 Order”).3 In support of its ban on paid priority arrangements with Internet Service Providers (ISPs), the FCC’s 2015 Order * Associate Professor, Santa Clara University School of Law (SCU Law). Former Commissioner, California Public Utilities Commission (Jan. 2011 to Jan. 2017). Appointed by the Federal Communications Commission to the Federal-State Joint Conference on Advanced Telecommunications Services, 2013–Jan. 2017; State Chair 2014–2015, State Policy Chair, 2013–2014. Thanks to SCU Law, its faculty and students for their support for this research and an open Internet. Special thanks to my top- notch research assistant, Luke Batty, SCU Law Class of 2019, for his research work and contributions to drafting this Article, including his detailed review of the Mozilla v. FCC oral arguments. Special thanks to my husband, Steve Smith, for his kindness and boundless support. 1 Restoring Internet Freedom, 83 Fed. Reg. 7852, 7852 (Feb. 22, 2018) (repealing FCC rules adopted in 2015 that prohibited ISPs from blocking, throttling, or engaging in paid prioritization of Internet traffic except for limited reasonable network management justifications); In the Matter of Restoring Internet Freedom, 33 FCC Rcd. 311 (2018); APA, 5 U.S.C. § 551 (2012); 5 U.S.C.A § 706 (West) (Scope of Judicial Review); Mozilla v. FCC, ___ F.3d ___, 95, 97, 100 (2019) (citing comments of Catherine Sandoval to support decision to remand the Internet Freedom Order to the FCC for failure to analyze public safety). 2 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016). 3 In the Matter of Protecting & Promoting the Open Internet, 30 FCC Rcd. 5601, 5604 (2015). ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2019.658 http://lawreview.law.pitt.edu 953 U NIVERSITY OF P ITTSBURGH L AW R EVIEW P AGE | 954 | V OL. 80 | 2019 cited the comments that I filed while serving as a Commissioner of the California Public Utilities Commission (“CPUC”). My comments expressed concern that Internet “paid prioritization undermines public safety and universal service.”4 The Internet Freedom Order fails to recognize the public’s role in public safety enabled through the Internet’s bilateral and multilateral communications channels.5 This Article unmasks the “Cat Video” paradigm that the FCC’s Internet Freedom Order employs to diminish the importance of public Internet communications. It concludes that an open Internet safeguarded from ISP interference protects the public’s role in public safety and democracy. This Article fills a gap in the net neutrality academic literature by conceptualizing the Internet’s technological and regulatory evolution in the context of the public’s role in public safety. It views people as content creators and public safety co-creators, who depend on open and neutral access to the Internet to share public safety information through video, text, Geographical Information System (“GIS”) and other formats. The academic literature on net neutrality and public safety published to date has largely focused on institutional public safety roles and government Internet access for public safety.6 This Article, along with my Article 4 Id. at 5654–55 n.91 (citing Catherine J.K. Sandoval, Commissioner, Cal. Pub. Util. Commission, Comment Letter on Protecting and Promoting the Open Internet (Oct. 14, 2014)) [hereinafter Commissioner Sandoval, Ex Parte Letter]. 5 See 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). 6 See, e.g., Ajit Pai, The Story of The FCC’s Net Neutrality Decision and Why It Won’t Stand Up in Court, 67 FED. COMM. L.J. 147, 189 (2015). In the Spectrum Act of 2012, for example, Congress assigned the First Responder Network Authority certain responsibilities, including developing for public safety users a “core network” that “provides connectivity” to “the public Internet or the public switched network, or both.” FCC Chairman Pai argues in this article that this “provision makes clear that Congress knows the difference between ‘the public switched network’ and the ‘public Internet.’” Id. See also id. n.64 (citing Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2019.658 http://lawreview.law.pitt.edu N EUTRALITY R EPEAL R IPS H OLES P AGE | 955 Net Neutrality Powers Energy and Forestalls Climate Change,7 are the two academic articles that put public safety, and the public’s role in the use of Internet services, at the center of the net neutrality debate and analysis. This Article theorizes that an open and neutral Internet improves public safety. Telecommunications theory recognizes that communications networks, whether the telephone system or the Internet, are more valuable when everyone can communicate with everyone.8 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. This Article advocates net neutrality regulation that facilitates a “Whole Community” approach to public safety, consistent with Federal Emergency Management Administration’s (“FEMA”) 2010; Establishment of Rules and Requirements for Priority Access Service, Second Report and Order, 15 FCC Rcd. 16720 (2000)) (finding “Priority Access Service, a wireless priority service for both governmental and non-government public safety personnel, ‘prima facie lawful’ under section 202”); Bryan N. Tramont & Russell P. Hanser, Facing Tomorrow’s Challenges: Looking Forward, Looking Back, 16 COMMLAW CONSPECTUS, at i, viii (2007) (“Just like the task of ensuring law enforcement’s ability to intercept communications when authorized by warrant, the task of creating a true next-generation public safety network will likely require appropriate government involvement.”); Brooke Ericson, “Möbius-Strip Reasoning”: The Evolution of the FCC’s Net Neutrality Nondiscrimination Principle for Broadband Internet Services and its Necessary Demise, 62 ADMIN. L. REV. 1217, 1253 (2010) (analyzing the FCC’s 2010 Open Internet Order that crafted net neutrality nondiscrimination principle under Title I of the Communications Act, “subject to reasonable network management and other enumerated exceptions for law enforcement, public safety, and homeland and national security.”). 7 See Catherine J.K. Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change, 9 SAN DIEGO J. CLIMATE & ENERGY 1, 4, 16–18, 30–31, 33–34, 36–39, 45–48, 53, 56–57, 60–61, 79–81 (2018) [hereinafter Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change]. See also Amie Alexander, Utility Law—All Hands on Deck: Bringing Broadband Home to Rural Arkansas, 40 U. ARK. LITTLE ROCK L. REV. 401, 409 (2018). [T]wenty-two states and the District of Columbia, representing more than half the United States population, have asked a U.S. Appeals Court to reinstate the 2015 Open Internet Order and strike down the FCC’s efforts to preempt states from imposing their own open internet rules. These states contend that the FCC’s actions could harm public safety, arguing that the absence of open internet rules jeopardizes the regulation of the electric grid. Id. 8 See Tex. Alarm & Signal Ass’n v. Pub. Util. Comm’n, 603 S.W.2d 766, 770 (Tex. 1980) (The “universal service objective is founded on the concept that all subscribers to a telephone company’s basic service network benefit when another person joins that network. Therefore, the entire network is more valuable because of the addition of the new subscriber.”); Pub. Util. Comm’n of Tex. v. AT&T Communications of the Sw., 777 S.W.2d 363, 372–73 (Tex. 1989). ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2019.658 http://lawreview.law.pitt.edu U NIVERSITY OF P ITTSBURGH L AW R EVIEW P AGE | 956 | V OL.