I filed comments with the FCC today on the DC Circuit’s public safety remand. As most FCC watchers are aware, the Court wasn’t entirely satisfied with the agency’s explanation of the potential public safety effects of the Restoring Internet Freedom order it passed in 2017.

The Court asserted that the FCC didn’t dot all its i’s and cross all its t’s: “The Commission’s 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.” [p. 100]

The Order didn’t directly affect public safety, of course, because the order it vacated (Tom Wheeler’s 2015 Open Internet Order) exempted public safety from net neutrality restrictions. So public safety was free to purchase services that prioritize and discriminate to its heart’s content before RIF and after RIF.

Why the Remand?

Frankly, the court’s public safety remand was a bit petulant. It endorsed some claims made in amici filed by various members of the California public safety community that are perfectly bizarre in retrospect.

In the Court’s words: “Santa Clara County, for example, explained that the 2018 [sic] Order would have a “profound negative impact on public welfare, health, and safety” communications.” The California Public Utility Commission (CPUC) predicted that the RIF Order would: ““profoundly impair[]” the ability of state and local governments “to provide comprehensive, timely information to the public in a crisis.”

Law professor and one-time CPUC Commissioner Catherine Sandoval predicted that the RIF Order would prevent public power companies from requesting demand reductions from customers by disabling: “…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.”

And the California Department of Forestry and Fire Protection (CDFFP) pleaded that it “depends on broadband access, speed, and reliability” in order to “track fire threats, fires, and manage forests and vegetation” to prevent fires”, a capability that it apparently believed would cease to exist without the Title II Order’s ban on QoS by contract.

Predicted Indirect Effects Haven’t Happened

The Californians were upset about bad experiences with cell phone plans that took place during 2017 Tubbs Fire (when Title II regulation was still in effect) and the 2018 Camp Fire (when it was not.)  Obviously, the fact that the same thing happened under two different regulatory regimes should be a clue that the issue isn’t regulatory in nature.

We haven’t seen the California crowd’s predicted indirect effects come to pass: their websites are still humming along, their phone calls are still getting connected, and their entreaties to consumers to reduce their power consumption are still being heard.

Critically, the prophecies of doom that persuaded two judges on the DC Circuit Court to remand the public safety questions don’t even standup now that we’re expecting the Internet to do twice as much as it has ever done. Americans aren’t just getting good service from their residential service providers, they’re getting that service in the midst of the COVID-19 pandemic.

Fundamental Misunderstanding

The Zoom video conferencing system that HTF uses has truly blossomed during the pandemic, growing from 10 million customers a few months ago to 200 million today. This is one of the most demanding apps the Internet has to handle because it has little tolerance for delay and high bandwidth requirements on both the downstream and upstream sides.

But it works.

The primary problems Zoom has had to overcome in the course of its 20x expansion aren’t related at all to ISP misbehavior: it has had to pay more attention to security and privacy, and its dial-up provider needed an exemption from some FCC regulations on phone service providers. Surely, if Zoom can handle this explosion in traffic and users to address a global crisis, ISPs must be doing a stellar job.

I’m pretty sure the FCC’s remand response will go smoothly.