Throttling Firestorm Overblown

August 24, 2018

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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.