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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations interpret other aspects of the Restoring Internet Freedom Order such as the transparency requirements. We do note, however, that ISPs remain obligated to fulfill all transparency obligations set forth in the Restoring Internet Freedom Order, including disclosure of redress options. Relevant to its concerns about discrimination by ISPs with competing alarm monitoring services, ADT notes that ISPs have stated commitments to refrain from engaging in unreasonable discrimination and recognizes that failure to comply with disclosed practices exposes ISPs to liability.
Thus, we conclude that the incidents cited by ADT do not justify revisiting the regulatory approach we adopted in the Restoring Internet Freedom Order.
38. Speculation Regarding Specific Forms of Harm. We next review speculative claims in the record regarding various specific types of harm to public safety communications that allegedly could arise from the Restoring Freedom Order. In each case, we find no evidence that the form of harm at issue has occurred and conclude that such harm is unlikely to arise as a result of the Restoring Internet Freedom Order.
39. Speculative HarmBlocking and Throttling. We disagree with commenters who assert that the Restoring Internet Freedom Order will lead to ISPs engaging in blocking and throttling practices that harm public safety. As an initial matter, all major ISPs have made written commitments not to engage in practices considered to violate open internet principles, including blocking and throttling. Even in the absence of such commitments, as we previously found in the Restoring Internet Freedom Order, it is likely that any attempt by ISPs to undermine the openness of the internet would be resisted by consumers and edge providers. Consequently, ISPs lack an economic incentive to engage in practices such as blocking or throttling, especially when these practices may harm public safety. As the D.C. Circuit explained, the harms from blocking and throttling during a public safety emergency are irreparable. We agree, and as such note ISPs enforceable commitments against blocking and throttling, and again note that such emergency communication often occur over specialized, non-mass market data services to maintain quality-of-service.
Even if, as the County of Santa Clara et al. claims, it is difficult, if not impossible for governments to identify harm caused by violations of net neutrality principles, we observe that it would be as difficult to detect violations of binding net neutrality rules as it is voluntary commitments. We observe
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that the record lacks evidence of blocked or throttled public safety as a result of the reclassification of broadband internet access service as an information service and the elimination of the internet conduct rules. Thus, we find no basis on this record to conclude that ISPs have engaged or are likely to engage in blocking or throttling that cause harm to public safety in a manner that would have been prohibited under Title II.
40. Importantly, although proponents of Title II regulation express concern that a light-touch framework will lead to practices such as throttling and blocking, the record does not contain even one recent example of such conduct harmful to public safety that would have been prohibited under Title II. If unleashing ISPs from Title II
regulation truly endangered public safety, then one would expect that this threat would have materialized in the more than two years that have passed since the Restoring Internet Freedom Order took effect. Instead, there has been no evidence that the anticipated harms have occurred, or that ISPs plan to engage in blocking or throttling of public safety traffic.
41. Likewise, we find unpersuasive commenters concerns regarding the effect of service plans that limit data or speeds on members of the public who rely on mass market broadband internet access services to access public safety information. We observe that broadband service plans that limit data or speeds were not prohibited even under the Title II Order; as such, we find the return of broadband internet access service to its information services classification and elimination of the conduct rules irrelevant to the impact on the permissibility of throttling under a data plan when the data cap is exceeded. We also observe that the record provides no evidence of any actual incidences of throttling or usage-based plan allowances that have harmed consumers mass market broadband internet access service communications in the public safety context.
42. We are similarly unpersuaded by commenters concerns that public safety communications may be harmed if ISPs theoretically engaged in blocking or throttling practices because transmissions from public safety officials cannot reliably be isolated and identified as governmental communications. Because ISPs understand that broadband internet access service is used for public safety communications, they have strong incentives to act in accordance with their commitments to abide by open internet principles for all
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communications, lest they risk reputational damage they might suffer if they were found to be hampering communications that have public safety implications. ISPs successful response to the exponential network demands during the COVID19 pandemic demonstrate their willingness and ability to act under a light-touch regulatory framework to protect and facilitate public safety communications during crises.
43. Taken together, these considerations persuade us that commenters concerns that the regulatory approach of the Restoring Internet Freedom Order would lead to ISP blocking or throttling that causes harm to public safety are speculative and unlikely to occur. The dearth of real-world examples of public safety harms from blocking or throttling mass market broadband internet access service bolsters our views discussed above that the transparency rule, coupled with consumer protection and antitrust lawsespecially when further coupled with the particular reputational harms likely to arise were ISPs to block or throttle traffic in a way that harmed public safetysubstantially reduce the likelihood of such conduct occurring in the first instance. And scenarios of concern to commenters involving service plans with data caps or speed limits would not have been addressed differently under the Title II regime in any event. As a result, these speculative concerns do not justify altering our regulatory approach in the Restoring Internet Freedom Order.
44. Speculative HarmPaid Prioritization. We are unpersuaded by commenters who assert that the Restoring Internet Freedom Order will result in ISPs engaging in harmful paid prioritization practices that will have an adverse effect on public safety. The Commission has long recognized and permitted prioritization of public safety communications. For decades, National Security and Emergency Preparedness NSEP personnel have had access to priority services programs that leverage access to commercial voice communications infrastructure to support national command, control, and communications by providing prioritized connectivity during national emergencies. NSEP personnel generally refers to individuals who are responsible for maintaining a state of readiness or responding to and managing any event or crisis local, national, or international, which causes or could cause injury or harm to the population, damage to or loss of property, or degrades or threatens the NSEP posture of the United States. This
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