Why Is Vance Supporting Overregulation of Rail Service?

On March 16 the Washington Post published an article by John Shelton, Vice President for Public Policy at Advancing American Freedom. The article criticized Vice President JD Vance for supporting the so-called Railway Safety Act. Mr. Shelton began by describing the Trump Administration’s normal approach to artificial intelligence (AI) and innovation, which has been to rally behind AI’s ability to deliver large economic and social benefits. In an earlier speech, Vance described the promise of a new industrial revolution as being on par with the invention of the steam engine. However, at the same time, Vance warned against overregulation, which would deter innovators from taking the risks needed to make new discoveries, including large investments of time and money. 

 

As Mr. Shelton points out, Vance’s support of AI seems incongruent with his current support of the proposed Railway Safety Act. Vance is one of the bill's major supporters even though it would increase regulatory burdens without having a positive effect on rail safety.

The origin of Vance’s support is a 2023 train derailment in East Palestine, Ohio, which Vance represented when he was a Senator. Yet the bill’s provisions have little to do with derailments. One of the most controversial provisions would require most trains to have at least two employees at all times. However, the train in East Palestine had three crew and none of them could have prevented the disaster. In fact, there is no evidence that crews of one are inherently less safe than crews of two.

The railroads have a long history of steady improvements in safety, going from 8,205 accidents in 1980 to 1,818 in 2023, even as the amount of rail freight intermodal traffic increased from under 9 million containers in 2000 to over 13 million in 2020. This effort has mainly focused on collecting data on train operations, processing it to detect safety concerns, and issuing an automated response to any safety threats, often without waiting for a human action. Over time, this process has led to better data, faster processing, and more accurate responses than humans can deliver. Much of this safety progress has been at the initiative of the railroads themselves rather than the Federal Railway Administration. Now, AI promises to supercharge this process leading to even further safety improvements.

Ralph Waldo Emerson once said: “[a] foolish consistency is the hobgoblin of little minds” So is foolish inconsistency. Vice-President Vance’s support of the Rail Safety Act requires another look.

 

Public Safety Served by Enterprise Communications Networks, Not Public Utility Regulation

On March 31, AT&T and the FirstNet Authority announced that total connections to the FirstNet nationwide public safety broadband network increased to 7.1 million across 30,000 law enforcement and first responder agencies during the first quarter of 2025. FirstNet was constructed and is operated by AT&T, and it is overseen by FirstNet Authority, an agency in the NTIA.

As explained in my February 2024 blog post, "FirstNet's Public Safety Communications Network Continues to Grow,"widespread adoption by law enforcement and first responder agencies of FirstNet – as well as competing enterprise networks, such as VerizonFrontline and T-Mobile's T-Priority – undermines the Biden FCC's public safety rationale for its now-vacated public utility regulation of broadband Internet access services. 

 

In the Securing and Safeguarding the Open Internet Order (2024), the Commission officially rebranded public utility regulation as a public safety measure. Public utility regulation has a long history. However, the idea that public utility regulation was vital to public safety and national security appears to have been entirely unknown until late 2023, when the Biden FCC launched its efforts to impose such regulation on high-speed broadband Internet services under Title II of the Communications Act. What a coincidence!

 

The Securing and Safeguarding the Open Internet Order was vacated by the U.S. Court of Appeals for the Sixth Circuit on January 2 of this year. In MCP No. 185 (2025), the court concluded that broadband Internet services are best understood as lightly regulated "information services" under Title I of the Act and not "telecommunications services" under Title II.

 

On April 28, the Free State Foundation filed reply comments in the FCC's Delete, Delete, Delete proceeding. In those reply comments, FSF President Randolph May and I recommended that the newly constituted FCC, under Chairman Brendan Carr's leadership, delete the now-vacated public utility rules from the Code of Federal Regulations. FSF's reply comments also recommend that the Commission delete many other outdated, harmful, and unnecessary regulations of communications services and close proceedings in which the agency previously had recommended additional regulations. FSF's initial comments in the Delete, Delete, Delete proceeding – focused on outdated, harmful, and unnecessary regulations of video services – were filed on April 11.

FCC's Misleading Rehash of 2018 Fire Incident Doesn't Justify Title II

On Monday, April 8, FCC Chairwoman Jessica Rosenworcel is set to join the Santa Clara County Fire Chief in California for a media event to discuss the Commission's proposal to transform broadband Internet networks into public utilities. According to a media advisory, Chairwoman Rosenworcel "chose to travel to the Bay Area to highlight an incident involving the Santa Clara County Fire Department where their internet access was throttled in the midst of their public safety response to the largest fire on record in California history." 

But there is a problem with Chairwoman Rosenworcel's apparent attempt to turn that bygone matter into a media flash point for public utility regulation. The July 2018 "wildfire incident" involving the Santa Clara County Fire Department was not a "net neutrality" violation.

One of the major flaws of the Biden FCC's proposed Internet regulation plan is that there is no existing problem that would justify such heavy-handed government controls. All or nearly all broadband providers in the nation pledge, in legally enforceable terms of service, to not block or throttle their subscribers' Internet access. There is a lack of real-world examples of broadband providers engaged in discriminatory blocking or throttling. The July 2018 "wildfire incident" provides no such example and its occurrence certainly doesn't justify Title II reclassification of broadband services.

 

I wrote about the July 2018 "wildfire incident" back in an August 2018 FSF Blog post, "Attempt to Turn Usage-Based Pricing into Net Neutrality Issue Is Non-Starter." To briefly recap, the Santa Clara County Central Fire Protection District signed up for a lower-tiered mass-market retail broadband Internet service plan with a monthly so-called "data cap" that resulted in slower speeds when the cap was exceeded. Near the end of July 2018, while a massive fire was blazing, the Fire District experienced exceeded its service plan's data allotment. Although the broadband service provider had a policy of making exceptions for emergencies, a customer service employee did not execute that request and the Fire District experience slowed service for some time thereafter. The broadband provider later apologized for the mistake and changed their policy to prevent that sort of result from happening again.

Although supporters of public utility regulation almost immediately made noise about the 2018 wildfire incident, there was no underlying net neutrality violation. Even if the 2015 Title II Order had remained in force in 2018, the usage-based pricing plan that the Santa Clara County Central Fire District subscribed to would have been permissible. As I explained in my August 2018 blog post: 

Usage-based pricing with data allowances was affirmed under the now-repealed 2015 Obama FCC Title II Order. According to paragraph 122: "Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it does not address a practice of slowing down an end user's connection to the Internet based on a choice made by the end user. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier."

Buried in footnote 13 of the legal brief challenging the 2017 Restoring Internet Freedom Order, Santa Clara County and other pro-regulatory advocates admit they are not attempting to argue that Verizon's usage-based pricing plan with the fire district would have violated the 2015 Title II Order. This makes the net neutrality theater act pretty obvious.

 

After an intermission, the theater act resumed last fall. Chairwoman Rosenworcel invoked the incident in her statement accompanying the FCC's September 2023 Notice of Proposed Rulemaking to reclassify broadband Internet access services under Title II. However, the Notice didn't mention it. (The Free State Foundation filed comments and reply comments in response to that Notice, recommending against Title II regulation.)

 

Now the Commission's April 2 draft order invokes the 2018 wildfire incident in seeming support for new agency rules. But the result is underwhelming. Paragraph 452 includes a brief summation of clashing views of public comments: 

Commenters reach differing conclusions regarding the significance of the 2018 Mendocino Complex Fire. Commenters who support reclassification point to the wildfire incident as an example demonstrating the need for the open Internet rules and for the Commission to have greater authority to examine and investigate such incidents, and ultimately, to prevent future harms from occurring. Without such rules, these commenters warn, BIAS providers will engage in conduct that could result in harm to public safety, and that voluntary commitments are insufficient to ensure public safety. Commenters who oppose reclassification contend that the wildfire incident is irrelevant to, and an unpersuasive example used in support of, reclassification and the open Internet rules, because “the data plan at issue was marketed to government users, and therefore not covered by the FCC’s 2015 rules, nor by the definition of BIAS contained in the NPRM” and that Verizon’s actions would not have violated the 2015 Open Internet Order.  In other words, they state that the type of data use plan that Verizon offered and that the Santa Clara fire department purchased did not violate the 2015 Open Internet Order. Opponents also argue that the Santa Clara fire department did not purchase a data plan that was appropriate for their needs.  

The paragraph next offers the Commission’s brief take on the matter: 

In our view the 2018 Mendocino Complex Wildfire incident demonstrates that given the high stakes at issue—the loss of life and property—reliance on the free market alone is insufficient in the area of public safety. 

For all the fuss over the 2018 wildfire incident, at the end of the day the draft order never deems the incident to be a violation of net neutrality principles or the no-throttling rule. Instead, the incident is again being used in a misleading way to kick up dust in support of the proposed regulation. 

 

Public safety is a primary function of government. But responsibility for public safety belongs primarily to agencies like the Department of Homeland Security – and not to the FCC. Congress never provided any clear statement of authority for the Commission to impose public utility regulation on broadband services for public safety purposes. The draft order faces a cliff because the Supreme Court's Major Questions Doctrine requires a clear statement of authority for the agency to undertake such a politically and economically significant action as imposing public utility regulation on broadband Internet access services. The Commission's attempt to rebrand Title II regulation as a public safety matter is an empty and likely doomed attempt to get around the agency's lack of authority problem. 

 

Moreover, there is a huge mismatch between public safety and Title II regulation of commercial mass-market retail broadband Internet access services offered principally to residences and small businesses. Law enforcement agencies and emergency responders rely substantially on enterprise or dedicated networks, including FirstNet. The Title II legacy telephone regulatory framework was designed for rate-regulating common carrier services, and it has almost nothing to do with public safety. There is no reason to think that Title II reclassification of broadband will improve public safety outcomes. 

FirstNet's Public Safety Communications Network Continues to Grow

On January 24, AT&T released its report for the fourth quarter of 2023. AT&T announced that the FirstNet nationwide public safety broadband network it constructed has increased its total connections to more than 5.5 million across 27,500 law enforcement and first responder agencies. FirstNet is overseen by FirstNet Authority, an agency within the NTIA.

The widespread adoption by law enforcement and first responder agencies of FirstNet and other enterprise networks is significant because it undermines the FCC's attempted partial rebranding of public utility regulation of residential mass-market retail broadband Internet access services as a vital public safety measure. The Commission's Notice proposing to reclassify broadband Internet access services as a public utility under Title II of the Communications Act even acknowledges that "much of the communications between public safety entities and first responders take advantage of enterprise-level dedicated public safety broadband services." Indeed, enterprise-level dedicated networks with quality-of-service guarantees are more ideally suited for government agencies such as emergency first responders. 

 

On December 14, 2023, the Free State Foundation filed public comments opposing Title II reclassification and imposition of public utility regulation on broadband Internet access services. FSF's comments called attention to the glaring disconnect between imposing public utility regulation on commercial broadband Internet access services in the name of national security and public safety when the military, law enforcement, and emergency responders rely heavily on dedicated networks. 

 

Also, in the Free State Foundation's reply comments, filed on January 17, 2024, we observed that "it is a weighty matter to impose government controls over private services and property catering to civilians in the name of national security and public safety." And thus, "[i]t is unlikely that Congress intended to alter the balance between public power and private rights through such an expansive reading of Title II." Our reply comments voiced agreement with the proposition that national security and public safety have never before been relied upon by the Commission as a justification for common carrier regulation of broadband.

 

For more on the empty national security and public safety rationale for regulating residential commercial broadband Internet services as public utilities, see FSF’s comments and reply comments. See also my October 2023 Perspectives from FSF Scholars, "Net Neutrality Regulation Is Not a Public Safety Measure."

FirstNet's "Priority and Preemption" Secures Public Safety Communications

On April 26, FirstNet and the AT&T Policy Forum hosted an event titled "Looking Back – The Ultimate Stress Test for FirstNet." The event included a conversation with Congressman Bob Latta and a panel event discussing public safety communications and FirstNet's operations over the past year. The discussion highlighted the importance of FirstNet's "priority and preemption" feature that ensures public safety users have solid connections to communicate in emergencies or for other public safety purposes. 

Paragraph 24 of the FCC's October 2020 Restoring Internet Freedom Remand Order spotlighted FirstNet and its dedicated public safety service:

The record reflects that many public safety entities have access to and make use of dedicated public safety-specific and/or prioritized, specialized enterprise-level broadband services for data communications between public safety officials Perhaps the most important example of a dedicated network is the Congressionally-created First Responder Network Authority (FirstNet). In 2012, Congress passed the Middle Class Tax Relief and Job Creation Act, which in part directed "the establishment of a nationwide, interoperable public safety network" to "ensure the deployment and operation of a nationwide, broadband network for public safety communications" —a resilient network capable of supporting both data and voice communications. The law granted 20 megahertz of spectrum to be used for the network and allocated $7 billion of funding. FirstNet offers service priority and preemption, which allow first responders to communicate over an "always-on" network… The record reflects that "[m]ore and more, public safety is relying on the FirstNet core and public safety’s own dedicated network for critical public safety communications – one that offers faster performance than commercial networks."  

In the next paragraph, the FCC's order offered additional insights into the public safety communications and dedicated or prioritized broadband Internet services: 

"[O]ther service providers have recently begun offering or enhanced their public safety services to compete with FirstNet." For example, Verizon offers services designed for first responders and public safety entities through its public safety private core that include the ability to prioritize public safety communications to ensure that they stay connected during emergencies. Such services also provide an extra layer of assurance that public safety communications will continue to operate during peak times. In addition, public safety users "have access to several … enhanced services" from Verizon, including Mobile Broadband Priority Service and data preemption. These services "provide public safety users priority service for data transmissions" by giving users priority over commercial users during periods of heavy network congestion and "reallocat[ing] network resources from commercial data/Internet users to first responders" if networks reach full capacity. 

The view expressed by the FCC's order are consistent with comments filed in the proceeding by Free State Foundation President Randolph May and I. As FSF's comments stated: "Paid prioritization arrangements offer a valuable option for government agencies responsible for public safety to use communications services that feature higher quality and improved reliability compared to traditional best-efforts broadband networks."

FCC Reluctantly Initiates T-Band Reallocation Process; Will Congress Intervene?

Newton's first law of motion states that "[a]n object at rest stays at rest and an object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force."

The mandate set forth in the "Middle Class Tax Relief and Job Creation Act of 2012" that the FCC reallocate and auction the T-band? An object in motion. Congressional action to prevent that from happening? A much-needed unbalanced force.

Whatever motivated adoption of the T-band auction mandate eight years ago is of little concern today. What matters in 2020 is that first responders in a number of large metropolitan areas, including New York, Los Angeles, Chicago, Philadelphia, and Boston, depend upon the T-band (470-512 MHz) for mission-critical communications.

Also significant: the U.S. General Accountability Office (GAO) reports that, in many of these locations, there may not be alternative spectrum available to which first responders might relocate. And multiple agencies, including the FCC and the National Public Safety Telecommunications Council, have concluded that relocation costs, which could be as high as $6 billion, likely would far outweigh auction revenues.

That is why FCC Chairman Ajit Pai, when he recently renewed his call for federal legislation to repeal the T-band auction mandate, labeled it a "bad idea." Democratic Commissioner Jessica Rosenworcel said the same, "any way you cut it."

Nevertheless, the Commission's hands are tied, and so on July 6 it adopted a Notice of Proposed Rulemaking (NPRM) in order to initiate the process with sufficient time to meet the statutory deadline of February 22, 2021.

As the NPRM hopefully notes, however, "[b]ipartisan Congressional opposition ... has increased" and "[m]ultiple bills have been introduced that would repeal the T-Band Mandate."

One such piece of proposed legislation, the "Don't Break Up the T-Band Act of 2019" (H.R. 451), was approved by the House Energy & Commerce Committee earlier this week.

A companion bill (S.2748) was introduced in the Senate late last year.

The T-band auction mandate is a threat to public safety and a waste of limited agency resources. It is time for Congress to apply an equal and opposite force to stop its forward motion.

FCC Report on 911 Taxes Identifies States' Improper Use of Funds

On December 19, the FCC published its 11th Annual Report on State 911 taxes, in which it found that nearly $198 million in 911 taxes charged to voice service consumers were improperly diverted to non-911 purposes in 2018. That's down from the $285 million in 911 tax revenues the FCC found were improperly diverted by states in 2017. However, the 11th Report reveals that New Jersey, New York, and Rhode Island continue to be the worst offenders. The 11th Report identified over $186 million in diverted 911 tax dollars from New Jersey and New York combined. It's important that FCC keep these states in the spotlight and that both the Commission and Congress consider measures to hold those states and others accountable.  

FCC Commissioner O'Rielly Calls Out Montana's Misuse of 911 Tax Dollars

If states charge consumers taxes for 911, then every tax dollar collected ought to be directed to 911-related services. Yet, as I explained in a January 2019 blog post, some states divert large amounts of 911 tax dollars to completely unrelated matters. That blog reviewed the FCC's 10th Annual Report on State 911 Taxes, which identified individual states that spent some $285 million in 911 tax dollars on non-911 purposes in 2017. 

On September 9, FCC Commissioner Mike O'Rielly sent a letter to Montana's Governor Steve Bullock in which he stated that, according to 2018 filings, "Montana's operating statute allows such diversion, permitting the Montana Legislature transfer for functions unrelated to 9-1-1 communications and the corresponding answer centers." Commissioner O'Rielly requested that Gov. Bullock "initiate a process to reverse this blatant misappropriation of funds and provide a firm commitment that such practice will not occur again."

Montana was identified in the FCC's 10th Annual Report for diverting about $2 million in 911 tax dollars to other things. Other states listed in the report diverted even more. Commissioner O'Rielly is right about what's wrong with deliberately misusing 911 tax revenues. Continuing to call public attention to states' misuse of those revenues is one important means of addressing the problem. But repeated warnings should not be allowed to continue unheeded. As I mentioned in my blog post, the Commission should be prepared to follow through on report warnings that states diverting 911 tax revenues may be ineligible for matching federal grant awards.

Maryland Joins FirstNet and AT&T for Public Safety Network

On September 18, 2017, Maryland Governor Larry Hogan announced that the state will partner with FirstNet and AT&T to deliver a wireless broadband network to Maryland's public safety community, creating faster, more informed and better coordinated responses.  During the announcement Governor Hogan said: 

Keeping Marylanders safe is our top priority, and our first responders need to be equipped with every tool possible to protect our citizens. By adopting this plan, our first responders will now have the ability to efficiently and effectively work together not just within the state, but across the region and at the national level. This innovative initiative will also spur investment into Maryland's economy, helping to create jobs and enhance mobile broadband coverage in rural parts of the state.

This partnership will transform the way Maryland's fire, police, emergency medical services, and other public safety personnel communicate and share information. The enhanced wireless broadband coverage will reduce response times, mitigate damage, and save lives.