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Law360 (April 20, 2020, 7:22 PM EDT) -- The Federal Communications Commission refused to give a coalition of localities more time to comment on the agency's revived net neutrality proceeding, admonishing them on Monday for a last-minute attempt to use the coronavirus pandemic as a reason to gain more time.
Holding firm on the Monday deadline, the agency said that New York City, Los Angeles and Santa Clara County had asked to further extend the comment deadline based on pandemic complications just four days ago, although they presumably would've been aware of a need for more time much earlier.
"The COVID-19 crisis has spurred nonstop news coverage for at least the past month over the likely duration and extent of the pandemic," the FCC said. "It would be unfair at this late date to extend the comment deadline when other commenters (including, presumably, other states and localities) have been preparing to submit timely filings."
In March, the FCC granted a three-week extension for people to weigh in on issues that the D.C. Circuit raised, including how the agency's Republican-led internet deregulation affects public safety agencies that rely on unfettered web access.
In a request on Thursday for a second extension, New York City, Los Angeles and Santa Clara County said their first responders were still tied up and couldn't give the FCC the in-depth answers it solicited.
"We remain in the thick of responding to the current public health emergency. And this is exactly the sort of emergency that was at the center of the concerns local governments articulated in the original record in these proceedings — concerns that the Commission failed to consider," the cities and county wrote.
Andrew Jay Schwartzman, senior counselor for the Benton Institute for Broadband & Society, which won the original extension, called the decision to cut off comments on Monday "shameful" and said it undermines arguments that the agency has the public's best interests at heart.
"Chairman Pai and the FCC staff don't think that the pandemic is enough of an emergency to provide more time for first responders to file comments about how the Commission can ensure that first responders can serve the public in emergencies like pandemics," Schwartzman said. "There is a reason that the Court of Appeals told the Commission to address that obligation, and today's action likely will not be viewed favorably at such time as it goes back to the court."
The comment period in the ongoing net neutrality proceeding is meant to examine three gray areas that the D.C. Circuit singled out when it mostly upheld the rollback of Obama-era net neutrality rules mandating that internet service providers must treat all web traffic equally. To address one of those gray areas, the FCC specifically asked the public to weigh in on aspects of the remand that touch on public safety, such as whether organizations could possibly benefit from prioritized internet service and whether they widely rely on retail broadband service at all.
Through the comment period, the FCC is trying to gauge where certain public safety service disruptions intersect with net neutrality policy.
For example, Santa Clara County firefighters exceeded a monthly data plan as they battled the giant Mendocino Complex fire in 2018, triggering an internet slowdown that bogged down a field support unit. The incident raised questions about whether Verizon made a "customer support mistake" that contravened its normal practice of removing data restrictions for responders dealing with emergencies, or whether it was flexing its post-net neutrality power to interfere with network traffic.
The FCC also asked commenters to address how net neutrality policy affects physical internet infrastructure and low-income households that receive the internet through an FCC subsidy program.
The FCC said on Monday that it understands this issue has huge public interest implications, and that's why it must speed up the comment process.
"We do not believe that delaying resolution of these critical issues is in the public interest," the FCC said.
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
