Santa Clara University Law Professors Catherine Sandoval and Allen Hammond filed an Amicus Curiae Brief (friend of the court) with the D.C. Circuit Court of Appeals in the Net Neutrality Appeal, along with Howard University Communications Department Chair Professor Carolyn Byerly, and University of Houston Law Center Associate Professor Anthony Chase. Their Amicus brief argues that the FCC violated the law by failing to consider the implications for public safety, national security, and democracy resulting from the January 2018 repeal of the net neutrality rules previously adopted by the FCC in 2015 . The Administrative Procedures Act (APA) and its governing statute, the Communications Act of 1934, requires the FCC to consider the public safety consequences of its decisions. The 2015 Net neutrality rules were adopted to protect public safety, critical infrastructure such as energy, free expression, democracy, and other uses of the Internet. Verizon’s July 2018 slowing of the Santa Clara County Fire Protection District’s Internet use while deployed to fight California’s largest fire, the Mendocino Complex fire exemplifies the danger of the FCC’s failure to consider the effect of net neutrality’s repeal on public safety. The FCC’s 2015 net neutrality rules created FCC jurisdiction and rules the Santa Clara County Fire Protection District could have used to file an enforcement action arguing that Verizon violated the rules by: 1) throttling (dramatically slowing to 1995 dial-up speeds) the Fire District’s Internet use of Internet content, applications, and service during an active firefight; 2) violating the 2015 Order’s prohibition against unreasonable interference with and disadvantage to Internet users, and; 3) that this conduct was not justified by “reasonable network management.”
The Professors’ amicus brief also argues that the FCC’s tolerance of alleged identity theft in its 2018 rulemaking comment process and arbitrary classification of public comments as “non-substantive” distorts the record before the appellate court, undermines democratic decision-making, and violates the law. The brief urges the D.C. Circuit Court of Appeals to vacate, reverse, and remand to the FCC the net neutrality order for a new proceeding to consider these important issues and respect public comment.
