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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations preemption portion of the Restoring Internet Freedom Order. These arguments appear to have been made prior to the Mozilla court vacating that portion of the Restoring Internet Freedom Ordera fact the California PUC does not addressand otherwise remain unresolved. We thus are not persuaded that these arguments demonstrate a public safety harm arising from the Restoring Internet Freedom Orders regulatory approach.
Commenters concerns about critical infrastructure-related risks are premised on the same ISP conduct that underlie commenters public safety concerns more generallyblocking, throttling, and paid prioritizationwhich we find unlikely to occur for the reasons already discussed above. As we found, the effects of ISP conduct involving paid prioritization, should they occur, are unlikely to detrimentally affect applications used for public safety purposes generally, and the record does not justify a different conclusion in the case of the applications cited by commenters in connection with critical infrastructure. Late in the proceeding BBIC filed an ex parte attaching in full a number of law journal articles and a brief from the Mozilla litigation from 2018 and 2019 without directing the Commissions attention to particular elements or aspects of those attachments beyond the specific quotes or arguments from those materials that it referenced in earlier filings, instead stating simply that the attached material is responsive to issues raised in these proceedings. Reviewing that filing in a manner consistent with the circumstances, each of the attachments appear, at least in part, to discuss public safety concerns in general, including critical infrastructure issues in particular. To the extent that the attachments appear to bear on the remanded public safety issue, these attachments do not appear to raise facts, arguments, or concerns that differ in material ways from those we otherwise address and find unpersuasive in this section. For example, we do not readily identify in these attachmentsand BBICs accompanying ex parte letter does not highlightcircumstances where ISPs are likely to behave differently than otherwise reflected in our public safety analysis; nor applications or services with technical characteristics materially different than those otherwise considered in our analysis; nor legal responsibilities imposed on the Commission that we have not met here; nor other reasons for the Commission to reject its regulatory approach from the Restoring Internet
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Freedom Order that are materially different from the arguments the Commission otherwise finds unpersuasive in its analysis here. Nor is there evidence of such harm occurring since the Restoring Internet Freedom Order took effect.
54. Although commenters discuss various applications that arguably have at least some nexus to critical infrastructure protection, the record does not reveal technical details regarding the operation of any of those applications that demonstrates that they would be significantly affected by ISP
network management, let alone in a way that would have been prohibited by the rules adopted in the Title II Order. Nor is it even clear that all of the cited applications rely on mass market broadband internet access service, rather than enterprise services, specialized services, or other services that fell outside the scope of the Open Internet Order and Title II Order. For example, it is not clear from the record that Smart Grid communication to the internet-enabled backbone,
necessarily relies on mass market broadband internet access service. Nor is it clear whether the operation of certain devices that facilitate the applications cited by commenters, such as internet-connected thermostats, solar panels, and energy storage units, would rely on mass market broadband internet access service or instead on some other non-BIAS data services and as such, by default would not have been regulated by the Title II Order in any event. Commenters various highlevel claims about the general importance of communications to critical infrastructure also appear to extend beyond mass market broadband internet access services. Indeed, it is the increasingly robust broadband made available since the Restoring Internet Freedom Order that has made possible the fast, instantaneous communications needed for many of the beneficial critical infrastructurerelated programs to be effective.
55. Limited Scope of Any Hypothetical Harm. We emphatically agree with the Mozilla court that whenever public safety is involved, lives are at stake. Our analysis above demonstrates that harms to public safety, and thus American lives, have not arisen and are unlikely to arise as a result of the Restoring Internet Freedom Order. To be thorough, we must further observe that if some harm were nonetheless to arise, its impact would necessarily be limited by the important but bounded role that broadband internet access service plays in the broader public safety communications
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marketplace. Public safety entities often rely on enterprise-level broadband data services for communications between public safety officials, which were never subject to the Title II Order. And while mass market broadband services are a critical element of public safety communications for members of the public, such services are not the only means of disseminating, accessing, and conveying important public health and safety communications, as consumers rely on voice services most notably 911
capabilities, the emergency alert system, and wireless emergency alerts for accessing important public safety information as well.
5. The Public Safety Benefits and Overall Benefits of the Restoring Internet Freedom Order Outweigh Any Unlikely Harms to Public Safety 56. Our analysis leads us to conclude that the likely benefits of the Restoring Internet Freedom Order for public safety clearly outweigh any harms. Getting broadband to more Americans sooner and at lower prices can and will likely save lives. This public safety benefit extends beyond broadband internet access service to all commingled services that rely on the same facilities, and even to other services that ISPs may invest in with money that they would otherwise have spent on regulatory compliance. Weighed against our conclusion that harms to public safety have not arisen and are unlikely to arise as a result of the Restoring Internet Freedom Order, it is clear that the benefits of the underlying order outweigh the costs as to public safety.
Moreover, we must take into account that the likely benefits of the Restoring Internet Freedom Order extend far beyond public safety, and into every realm of American life touched by the internet. As we explained in the Restoring Internet Freedom Order, reinstating the information service classification for broadband internet access service is more likely to encourage broadband investment and innovation, further our goal of making broadband available to all Americans and benefitting the entire internet ecosystem. ISP investment does not simply take the form of greater deployment, but can also be directed toward new and more advanced services for consumers. Enabling ISPs to freely experiment with services and business arrangements that can best serve their customers, without excessive regulatory and compliance burdens, is an important factor in connecting underserved and hard-to-reach populations, and we agree with the Chamber of Commerce that the positive
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