I filed reply comments today on the remand of the public safety portion of the Restoring Internet Freedom Order. The DC Circuit went along with the Title II crowd in their October decision to the extent that judged the Commission’s consideration of public safety inadequate.

In the initial phase of comments, the usual suspects on the left were joined by Santa Clara County, California and the City of Los Angeles in arguing that light touch regulation is bad for all users of the Internet. This muddied the waters a great deal because the California government actors argued they have the same Internet needs as everyone else because they use Twitter.

Twitter is not, of course, an application that could be impacted one way or the other by prioritization. It’s not real time and it typically doesn’t move a lot of data. You can use Twitter for video streaming, but doesn’t typically take place in real time.

Who is Public Safety and Who Isn’t?

I argued in initial comments that public safety’s use of consumer services doesn’t qualify as the kind of thing the FCC should put under the public safety remit. FirstNet is a public safety network designed to be used when government is engaged in protecting the public. But when government uses Twitter or Facebook or YouTube it’s just like regular folks.

Their exposition of this argument actually places the whole enterprise of net neutrality regulation at risk: They said ISPs can’t tell which YouTube streams are from public safety and which aren’t.

If that’s the case – and it may be – we have to ask why anyone wants a regulation on the books against discrimination based in the source or destination of Internet traffic. You can’t very well discriminate against disfavored groups when we’re all anonymous. Hence, I think my narrow definition of public safety makes more sense.

The Fun Part

I particularly enjoyed comments filed by Kevin Martin’s chief technologist, Jon Peha. The DC Circuit pointed out in the October ruling (Mozilla v. FCC) that Jon’s amicus brief and mine agreed that DNS service is separate from transmission, and thus a candidate for information processing consideration under the law.

As part of the bundle of services ISPs offer consumers, that status elevates the entire package from simple transmission (Title II common carrier) to Title I Information Service. This time around Jon argued an indefensible position: he claimed there’s no prioritization without a corresponding degradation.

While there’s some truth in that proposition in the abstract, it doesn’t correspond to reality in any practical sense. Some applications are more sensitive to delay than others, and there’s only so much delay that a real-time application like VoIP or Zoom can really create. So I tore Jon’s argument to shreds.

The Conclusion

Here is what I said in conclusion:

In this remand proceeding, critics of the RIF Order have failed to provide useful or informative insights on ensuring the needs of public safety are protected though regulation. Overall, the impression that light-touch regulation of the Internet provides the best blend of technical progress and protection of legacy Internet applications is reinforced even by critics of the current regime.

Perhaps the long and painful march out of the net neutrality swamp is gathering steam.

We can only wish.