A Force for Net Neutrality

SANTA CLARA, Calif., Oct. 1, 2019 — Twice citing the comments of Santa Clara University School of Law Prof. Catherine Sandoval, a D.C. Circuit panel ordered the Federal Communications Commission to reconsider the impact on public safety of its order eliminating Net Neutrality.

The case, Mozilla v. FCC, sought to challenge the FCC’s 2018 order eliminating so-called Net Neutrality rules. That order in essence allows Internet Service Providers to block or throttle internet speeds for certain users, or require “paid priority” from internet users in order to get the best internet speed and connectivity.

After the FCC proposed the repeal, Sandoval and Santa Clara Law Prof. Allen Hammond, wrote comments raising an array of concerns over the FCC’s repeal. The FCC nonetheless ordered Net Neutrality repealed in 2018.

While not reversing that order, a three-judge panel of the D.C. Circuit did remand it back to the FCC, saying the regulatory agency had not adequately considered the implications to public safety from the repeal. That was an argument that had been put forth by Sandoval, a former commissioner of the California Public Utilities Commission, in her comments to the FCC.

In its ruling, the D.C. Circuit twice cited Prof. Sandoval’s specific comments as a basis for its remand.

Sandoval had stressed that repeal of Net Neutrality threatened public safety including energy safety and reliability, avoiding fire danger, and detecting natural gas leaks—especially if government safety entities, or the public, had not paid up for priority access in times of emergency.

The D.C. Circuit’s opinion noted, as did Sandoval’s comments, that the FCC failed to undertake a statutorily mandated analysis of the 2018 repeal order’s effect on public safety. The FCC’s failure to analyze the impact of net neutrality on public safety was held to be arbitrary and capricious under the Administrative Procedures Act.

The D.C. Circuit also found that the FCC fell far short when it cursorily dismissed—in a footnote— comments by Sandoval that Net Neutrality repeal increases risks “to America’s national security and democracy.” That was insufficient to address the “multi-faceted public safety concerns associated with subjecting emergency services providers, other public health providers, and the members of the public who depend on those services to paid prioritization and blocking and throttling,” the panel wrote.

More information on the D. C. Circuit Court’s decision is available online.

Media Contact
Deborah Lohse | SCU Media Communications | dlohse@scu.edu | 408-554-5121