County of Santa Clara Petitions Federal Appeals Court For Rehearing In Net Neutrality Case Against Trump Administration

Court’s ruling dangerously broke with precedent in allowing unlawful FCC repeal to stand

SANTA CLARA COUNTY, CALIF. — Continuing its efforts to protect its residents and challenge the Trump administration’s attempt to end net neutrality, the County of Santa Clara and Santa Clara County Fire today petitioned a federal appeals court to strike down the Federal Communications Commission’s (FCC) 2018 repeal of net neutrality. In the petition, the County alleges the court significantly deviated from precedent in allowing the rule to remain intact despite concluding that the rule was fundamentally unlawful. The County led a coalition of agencies and local and state governments in filing the petition.

“The panel’s decision in October couldn’t have been clearer—by failing to consider public safety, the FCC blatantly ignored the will of Congress, and put thousands of families and local communities at risk,” said James R. Williams, the County Counsel for The County of Santa Clara.  “The FCC is specifically required to consider public safety in all of its decisions. It cannot meet this obligation with an after-the-fact explanation that papers over the core problems of the rule. We are urging the full court to reconsider this decision in light of its very clear precedent, and not to allow the FCC to continue putting lives at risk by its repeal of net neutrality.”

In October, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit concluded that the FCC had neglected its statutory obligation to consider public safety in repealing net neutrality — and therefore that the repeal was unlawful. In so doing, the court agreed with an argument spearheaded by the County of Santa Clara and the Santa Clara County Central Fire Protection District, which argued the case before the panel in February. However, while the panel directed the FCC to address these concerns in future explanations of the rule, it did not strike down the rule, despite an unbroken string of decisions by the D.C. Circuit concluding that an agency’s failure to comply with relevant statutes requires a full dismissal of the regulation.

Over the past several years, the County of Santa Clara has led the charge for greater consideration of public safety in the net neutrality debate. Various entities, including Santa Clara County Fire, the County’s public health system, and the County’s own emergency operations, depend on high-speed internet service — including reliable and unimpaired service for both themselves and the community at large. Critical emergency alert services and notification systems depend on instantaneous transmission of the kind that is only protected by a free and open internet, which the FCC had protected until the Trump administration revoked the rules in 2018. 

The 2018 rule struck down public safety and consumer protections that prohibited internet service providers (ISPs) from favoring certain types of content over others, like establishing “fast lanes” for higher paying content providers or customers — the sort of activity that would disadvantage public entities and vulnerable communities that already face barriers to broadband access. But the FCC did not even acknowledge these problems. It said only that market forces should be enough to protect the public, despite evidence to the contrary, including a high-profile incident in which Verizon intentionally throttled the internet access of Santa Clara County firefighters while they were actively fighting the then-largest wildfire in California history in 2018. 

The County’s petition argues that, in addition to breaking with decades of precedent, the panel failed to consider that leaving the FCC’s invalid rule in place would lead to life-threatening and potentially irreversible effects on public safety and human life due to disruptions in service. The court’s decision essentially asks the FCC to explain why it ignored public safety, rather than requiring it to do what Congress said: adopt rules that from the beginning consider and account for the FCC’s duty to protect the public. In fact, if the FCC had done what Congress told it to do, it is entirely possible it would have decided against repealing the net neutrality rules. 

The County of Santa Clara submitted comments to the FCC expressing public-safety concerns in 2017, and then filed suit on February 22, 2018. More information on the County’s net neutrality work can be found on the website website​ for the County Counsel’s Office.

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About the Santa Clara County Counsel’s Office

The Office of the County Counsel serves as legal counsel to the County, its Board of Supervisors and elected officials, every County department and agency, and the County’s boards and commissions. With a staff of over 200, the Office is also responsible for all civil litigation involving the County and its officers. Through its Social Justice and Impact Litigation Section, the Office litigates high-impact cases, drafts innovative local ordinances, and develops policies and programs to advance social and economic justice. The Section also defends the County in select cases with the potential to significantly affect the County’s ability to provide critical safety net services to vulnerable residents. The Section is part of a growing movement to use the power and unique perspective of local government to better serve the community and to drive long-lasting change at the local, state, and national levels.

About the County of Santa Clara, California

The government of the County of Santa Clara serves a diverse, multi-cultural population of 1.9 million residents – more populous than 14 states. With a $8.1 billion annual budget, dozens of departments and agencies, and over 20,000 employees, the County provides essential services to its residents, including public health protection, environmental stewardship, medical services through the County of Santa Clara Health System, child and adult protection services, homelessness prevention and solutions, roads, park services, libraries, emergency response to disasters, protection of minority communities and those under threat, access to a fair criminal justice system, and many others.

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Media Contact: Alex Butcher-Nesbitt, [email protected], phone: (603) 707-6153.

Posted: December 13, 2019.​