FCC Likely Won't Hurry to Address Mozilla Case Public Safety Remand

FCC Chairman Ajit Pai is unlikely to rush to address a remand on public safety, an issue remanded for further work by the U.S. Court of Appeals for the D.C. Circuit Tuesday that largely upheld the FCC 2017 order overturning 2015 net neutrality rules (see 1910010018). Others said Wednesday because the issues involve public safety, the agency may feel compelled to respond (see 1910020028).

An FCC official said if the decision is appealed, the agency likely would hold up action on the remanded items for many months while the challenge is pending. If the ruling's not appealed, the FCC probably will take its time and avoid another fight on net neutrality, the official said. National Emergency Number Association CEO Brian Fontes is reviewing the ruling. APCO didn’t comment. The court also remanded what reclassification means for pole attachments and Lifeline.

“All three of the remanded issues will be tricky,” said Benton Institute for Broadband and Society Senior Counselor Andrew Schwartzman. “The commission went further than the original classification order upheld in Brand X by claiming it has no jurisdiction over broadband. It will now have to strain to find ways to meet its statutory obligations.” The D.C. Circuit remanded parts of the order, but didn’t vacate it, Schwartzman noted: Pai “may take his time, and may find it attractive to hand this hot potato to his successor.”

Pai has three choices, said New Street’s Blair Levin, former FCC chief of staff. The chairman can “do nothing and risk the court taking the item back,” which is unlikely, Levin noted. He can “do the analysis and come to the conclusion that market forces are sufficient to assure that under the Pai framework, there is no danger to public safety” or he can “exempt public safety and make it so that those services are subject to the bright line rules,” said Levin. He sees exemption as the most likely course.

Christopher Terry, assistant professor at the University of Minnesota School of Journalism and Mass Communication, who studies the FCC, said he doesn’t understand the commission’s “victory dance.” It's "a bad decision in a lot of ways,” he said. The FCC likely will have to launch a rulemaking on mobile service for first responders, he noted: “I don’t know what that would look like.” Terry predicted the FCC will “just kind of dodge the remand for as long as physically possible.”

The FCC has options, said Cooley’s Robert McDowell, a former commissioner. “It could open a proceeding narrowly tailored to the effects of [Communications Act] Title I classification on the FCC’s public safety domain and issue a sharply focused order,” he said: “It could alternatively incorporate that query into a broader series of public safety related proceedings and eventually issue a smorgasbord of new rules. Or it could do nothing new and proceed in its normal and ordinary course of managing its existing portfolio of public safety programs, none of which were upended by the remand.”

‘Why would there be a substantive concern since the hands off policy had been in place for years?” asked Mark Jamison, University of Florida professor who helped the Trump administration organize the current FCC. American Enterprise Institute scholar Roslyn Layton agreed the agency is likely to take its time.

“A number of commenters voiced concerns about the threat to public safety that would arise under the proposed (and ultimately adopted) 2018 Order,” the court said: “Public safety officials explained at some length how allowing broadband providers to prioritize Internet traffic as they see fit, or to demand payment for top-rate speed, could imperil the ability of first responders, providers of critical infrastructure, and members of the public to communicate during a crisis.”

The court discussed the 2018 incident in which the Santa Clara County, California, alleged Verizon throttled service to firefighters during the Mendocino Complex Fire (see 1808240039), months after the net neutrality order was released. “Direct and specific comments by Santa Clara County, former California Public Utility Commissioner [Catherine] Sandoval, and others repeatedly raised substantial concerns about the Commission’s failure to undertake the statutorily mandated analysis of the 2018 Order’s effect on public safety,” the D.C. Circuit said. “Disregard of its duty to analyze the impact of the 2018 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 should be able to explain “in a reasoned way” why the order “will not adversely impact public safety,” said Free State Foundation President Randolph May. “The Santa Clara incident involving Verizon almost certainly was a case of inadvertent human error, which, at bottom, had nothing to do with net neutrality dictates.”