C ONCLUSION

This Article explores an overlooked topic in academic and policy debates about net neutrality: the importance of an open and neutral Internet to electric reliability, safety, cost reduction, and harnessing competitive energy sources including renewables that reduce the energy sector’s GHG and carbon emissions. A decade of Smart Grid investments embedded communications and information technology and services including the open Internet throughout the distributed energy ecosystem. These investments unlocked energy resources such as demand response and DERS located at customer households, businesses, and a variety of locations. The distributed nature of critical infrastructure sectors such as energy, water, health care, underscore the need for open and neutral Internet access for all American businesses, families, and institutions. The FCC Internet Freedom Order’s decision to allow ISPs to manage the Internet in their business interest, remove legally enforceable prohibitions against ISP blocking and throttling, allow paid priority even if it degrades other users and uses, and permit ISPs to collect revenues from any content provider, constitute cyber security threats to critical infrastructure under CIPA.404 _{The FCC’s failure to consider the consequences of its net neutrality}

repeal decision for critical infrastructure, national security, the environment,

401. Id. at 13.

402. AT&T Corp. v. FCC, 448 F.3d 426, 433 (D.C. Cir. 2006) (citing Exxon Co. v. FERC, 182 F.3d 30 (D.C. Cir. 1999) (quoting Pub. Util. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 (D.C. Cir. 1993)).

403. Fox Television Stations, Inc. v. FCC, 280 F.3d at 1048 (citing Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d at 150–51 (“The decision whether to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.”)).

public safety, freedom of expression, and democracy constitutes arbitrary and capricious decision-making in violation of the APA.405

The FCC’s unfathomable tolerance of identity theft in its proceeding, delayed investigation, and other irregularities in its comment process constitute grounds for vacating the FCC’s Order.406 _{The Internet Freedom}

Order’s failure to discuss public comment filed through the Express Comment process manifests the FCC’s apparent plan to ignore the millions of Americans who submitted comment in this proceeding. The FCC’s conduct demonstrates “willful and unreasoning disregard of the facts and circumstances.”407 _This

is the worst FCC comment process I have witness in my nearly twenty-five years of practice in this field. The FCC’s inexcusably poor comment process and dismissive attitude toward public comment disrespects the public, abrogates the FCC’s duties under the Communications Act, and constitutes arbitrary and capricious decision-making in violation of the APA.408

Critical infrastructure sector participants and regulators including state PUCs, FERC, local, and tribal governments should support the repeal of the Internet Freedom Decision to ensure that ISPs are not able to exercise their gatekeeper power over the Internet. States, state PUCs, municipal utility regulators, local and tribal governments, as well as FERC should use their jurisdiction to ensure that ISP conduct does not compromise public safety, energy reliability, safe utility operations, just and reasonable utility rates, and the environment.

Firms with SEC reporting obligations whose business materially depends on the Internet must inform investors under Item 503(c) about the increased risks including cyber security risks the FCC’s Internet Freedom Order poses for their operations. Those firms should also support state and federal legislation to restore enforceable net neutrality rules as the FCC failed to fully consider the repeal Order’s risks to American business and the economy.

Congress Member Blackburn introduced a bill to codify a ban on ISP blocking and throttling, but her bill allows paid priority and preempts any state net neutrality laws such as those introduced in California and

405. Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm, 463 U.S. at 43; Cal. v. FCC, 4 F.3d at 1511; Anglers of the Au Sable v. U.S. Forest Service, 565 F. Supp. 2d at 816 (“The Forest Service’s failure to consider important aspects of the problem before approving [exploratory gas and oil] drilling [on a parcel of land within a nation forest] constitutes arbitrary and capricious agency action in violation of the Administrative Procedures Act.”).

406. See Fox Television Stations, Inc. v. FCC, 280 F.3d at 1048; Prometheus Radio Project v. FCC, 652 F.3d at 450.

407. Office of Commc’n of United Church of Christ v. FCC, 425 F.2d at 547. 408. Prometheus Radio Project v. FCC, 652 F.3d at 450; Office of Commc’n of United Church of Christ v. FCC, 425 F.2d at 547.

Washington.409 _{The Internet Association, a coalition that includes Amazon,}

Google, Microsoft, and other companies, opposed the bill stating. “The proposal circulated today does not meet the criteria for basic net neutrality protections.”410 _{Congress is unlikely to pass a bill on net neutrality in this}

session. Under the current structure of the Communications Act, only classification of ISPs under Title II can be used to prohibit ISP discriminatory conduct such as blocking, throttling, and paid priority.411

More than a decade ago Susan Crawford argued for the need “to reframe communications law to support what matters.”412 _{“What matters are}

communications themselves, and the increasingly diverse and valuable ideas they produce,” Professor Crawford argued.413 _{In 2018, energy sector Internet-}

based communications between people and things supports innovation, research, competition, energy reliability, public safety, just and reasonable rates, and environmental protection. A user-centric principle of Internet governance that considers the needs of critical infrastructure sectors and the public they serve is necessary to protect America’s economy, national security, public safety, environment, and democracy. Legally enforceable net neutrality rules grounded in Title II of the Communications Act prevent ISP gatekeeping behavior. Net neutrality powers energy and forestalls climate change, and merits continued support.

409. Adi Robertson, The Republican Net Neutrality Bill Doesn’t Save Net Neutrality,

THE VERGE, Dec. 19, 2017, https://www.theverge.com/2017/12/19/16797778/congress­

open-internet-preservation-act-marsha-blackburn-net-neutrality-bill [https://perma.cc/ 2BA8-FY28].

410. Id.

411. Verizon v. FCC, 740 F.3d at 659.

412. Susan P. Crawford, The Internet and the Project of Communications Law, 55 UCLA L. REV. 359, 407 (2007).