"Verizon finds itself in
the hot seat
after it apparently slowed data communications of fire fighters in
California who exceeded a pre-set threshold on their “unlimited” mobile
plan. The incident has little to nothing to do with net neutrality and
does not show why we need the old Title II-based rules, but it does
provide a useful example of how net neutrality advocates will take
advantage of bad optics to push for expansive regulation.
Soon after the issue was reported, Verizon put out
a statement
explaining that, “[t]his situation has nothing to do with net
neutrality or the current proceeding in court.” That is true enough—this
type of throttling was explicitly allowed under previous and current
net neutrality rules. However, it was through an
addendum to a recent
court filing
seeking to overturn the “Restoring Internet Freedom Order” that these
facts came to light. The Santa Clara County fire department explained
that, in the middle of fighting the Mendocino Complex Fire, officials
discovered its data connection for their support unit had been slowed
significantly. The fire department had purchased a government plan
similar to normal consumer data plans, where mobile data is technically
“unlimited” but speeds are slowed after a certain amount is used. Its
connection to net neutrality or why it is inserted into a net neutrality
brief isn’t immediately clear.
Even the expansive 2015 "Open Internet Order" made very clear that these sorts of pricing practices were generally above board.
Paragraph 122
of the now-obsolete order states that, as long as a carrier slows data
traffic because of a choice of a user (such as the data plan purchased)
and does not target a specific application or class of applications,
throttling is fine. The 2015 order says, “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.” This is of course a
common pricing practice. The court filing that described the firefighter
throttling incident even
admits that “[p]etitioners do not contend that this throttling would have violated the 2015
Order,” but simply argues that it demonstrates operators will put their economic interests first.
This isn’t to say we should be comfortable with a major carrier—even
accidentally—throttling a public safety application. This shouldn’t
normally happen. But Verizon made clear that this is not normal
practice, explaining in its statement that “[t]his was customer support
mistake,” and explained that normally they would be willing to lift the
throttling under these sorts of circumstances.
But what’s more, there are specific public-safety mobile broadband
plans for these sorts of situations. In fact, there is a whole mobile
broadband network for public safety:
FirstNet.
FirstNet is a nation-wide interoperable public safety mobile broadband
network. It was given $7 billion and 20 megahertz of spectrum under the
Middle Class Tax Relief and Job Creation Act of 2012, and is operated
through a public-private partnership with AT&T.
California has
opted in to using the FirstNet system, and the Santa Clara Fire Department itself uses FirstNet. According to reporting by the
Los Angeles Times,
Fire Captain Bill Murphy says they use FirstNet “as a supplement” to
Verizon. Why the county would rely primarily on a general-purpose
commercial network for coordinating the fight against this historic fire
and only subscribe to a dedicated first responder network “as a
supplement” is beyond me.
As an aside, the
claims
of the Santa Clara County counsel—that this incident “has everything to
do with net neutrality”—are also ironic considering FirstNet actively
prioritizes public safety over other traffic on commercial networks.
This shouldn’t be controversial—we want first responder video from an
apartment fire, for example, to get through with higher priority than a
bunch of spectators trying to stream to Facebook Live or Snapchat. It is
in the public interest to have a mobile broadband network for public
safety that is the antithesis of “neutral.”
It’s abundantly clear public safety data throttling isn’t a
persistent problem requiring additional regulation. Again, according to
Verizon’s statements, this was an isolated incident where an automated
system worked according to the plan the Santa Clara fire department had
purchased. Setting aside the question of why the fire coordination
wasn’t simply done over a different plan or a network designed for such
use, Verizon apparently has a practice of lifting the rate-limit when
public safety is at stake, even for plans that aren’t designed for
mission-critical communications.
True,
uncovered
communications make clear the usual customer support line was not
immediately helpful, but a call to the right person at Verizon likely
would have fixed the issue. Certainly, a press release with optics this
bad would see a quick correction. At the very worst, if this customer
support confusion actually expanded into a real problem that
consistently implicated public safety, the Federal Trade Commission
could step in. There are all sorts of ways the firefighters could have
seen this problem fixed, but the old Title II regulations wouldn’t have
changed this situation.
Considering this throttling was allowed under the 2015 Title II
rules, this scenario very well could have unfolded the exact same way
under the old regime if the firefighters had purchased a rate-limited
plan. Sure, it's bad optics that Verizon didn’t lift the rate-limiting
immediately and sort out the pricing details later. But it was a
localized customer-support mistake, and not anything the rules would
have prohibited.
But that doesn’t stop net neutrality activists. Take, for example, longtime net neutrality advocate Gigi Sohn, who
argues
that “Verizon and other broadband providers will put profits over
people even when it comes to matters of life and limb,” and claims
without the general conduct standard of the old rules and the FCC as a
forum to complain to there is nothing to stop ISPs from throttling
public safety. Again, the old rules allowed for these types of data
plans, even if the fire department should have been on a different one
for these purposes and Verizon should have been more responsive in
correcting this issue.
Net neutrality discussions have morphed from narrow, reasonable
policy debates to pure demagoguery, generalized attacks on ISPs, and
over-simplified, click-bait headlines that all feed a false perception
that comprehensive regulation is necessary to prevent all sorts of
Internet ills, imagined or real, whether they have anything to do with
specific net neutrality questions or not. It’s increasingly obvious that
activists will leverage the vague, feel-good concept of net neutrality
and any bad fact-pattern in a much a broader ideological fight over
broadband’s regulatory structure. In other words, use net neutrality as a
stalking horse for utility regulation. Of course, throttling of legitimate public safety data traffic should not happen, and we can have a
reasoned debate about net neutrality rules, but this incident clearly has nothing to do with Title II or the 2015 net neutrality regulations."