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One more time: The Verizon-Santa Clara fire dispute has nothing to do with net neutrality


In October, when the US Court of Appeals for the DC Circuit upheld the repeal of the net neutrality rules, it remanded to the Federal Communications Commission (FCC) to discuss the effect of the repeal on public safety. This remand has prompted a renewed discussion of one of the most misunderstood anecdotes in net neutrality lore: Verizon’s “throttling” of the Santa Clara Fire Department during the 2018 Mendocino wildfire. This post explains why this confluence of events, however unfortunate, has little to do with net neutrality.

What happened during the Mendocino fire

The dispute centers on the plan that Santa Clara Fire Department purchased for OES 5262, the department’s command-and-control vehicle used to coordinate resources in the event of an emergency. According to Ars Technica, the fire department purchased a $37.99/mo. wireless plan for the vehicle that offered 25GB of data at full speed, then unlimited data at throttled speeds for data use above the threshold. When the fire broke out, the spike in traffic caused the vehicle to reach its monthly limit rather quickly. Per the terms of the plan, Verizon reduced speeds to the vehicle, which limited its ability to coordinate the department’s resources. Verizon’s policy is to lift data caps on first responders during emergencies, but it was slow to recognize the Mendocino situation and initially asked the fire department to upgrade its plan to restore high-speed access. Verizon ultimately lifted the cap, but the delay hampered the fire department’s efforts.

One can recognize that it was a problem that first responders were effectively offline during a critical time. And people can reasonably disagree about whether the fault lies more with Verizon for failing to recognize the emergency and proactively lifting the monthly limit, or the Santa Clara Fire Department for trying to save a buck by buying a plan that was inadequate for such an important vehicle. (Verizon has since apologized for its role; as far as I know the fire department has not.) But one thing is clear: had the 2015 Open Internet Order been in place, it would not have prevented this disconnect, because the fire department’s plan was permissible under the now-defunct net neutrality rules.

The 2015 Open Internet Order and “throttled” data plans

The 2015 Open Internet Order primarily governed relationships between broadband providers and edge providers, the companies that provide goods and services over the internet. The bright-line rules prevented broadband providers from blocking lawful internet content, from impairing or degrading (“throttling”) traffic on the basis of content, and from entering into paid prioritization agreements with edge providers. These rules were animated by the concern that broadband providers competed with edge content and had incentives to favor affiliated content over unaffiliated content, or otherwise tilt competition in edge markets toward those who could afford to pay for priority delivery to consumers.

The order placed no similar restrictions on agreements between broadband providers and end-user consumers. Quite the opposite: the agency wrote that “[a] practice that allows end-user control and is consistent with promoting consumer choice” and that “enabling consumer choice is the best path toward ensuring competitive markets, economic growth, and technical innovation.” The order recognized that wireless plans that allow consumers to purchase a fixed amount of data per month were “the industry norm” and declined to prohibit usage-based pricing plans, though the agency reserved the right to review instances where such limits were used “to disadvantage competing over-the-top [edge] providers.”

This means that the plan that Verizon offered, including a fixed amount of monthly data and a throw-in of unlimited data above that limit at reduced speeds, was consistent with the 2015 Open Internet Rules. It was one of several plans that Verizon offered to government users. And the FCC is right in asserting that choice is beneficial: different consumers have different needs, so it is better for society for providers to offer a menu of options at different price points and allow individual consumers to select the plan, and price, that it best for their unique needs. (One can fault Verizon for marketing this plan as “unlimited” or for failing to lift the cap in accordance with its first responder policy, but these are consumer protection concerns that can be — and in the case of unlimited plans, have been — addressed by the Federal Trade Commission.)

Public safety and prioritization

Lurking in the background of this dispute is the notion that first responder traffic is important and should receive priority treatment on broadband networks. This may seem self-evident. But it is important to note that it also cuts against the overarching ethos of the net neutrality movement, that broadband providers should treat all traffic the same without distinguishing on the basis of sender or content. I expect this insight will feature in the FCC’s consideration of public safety on remand: if one is concerned that public safety traffic receive protection from network congestion, that’s an argument for, not against, prioritization. And it supports the Restoring Internet Freedom Order’s belief that one-size-fits-all traffic management practices are inconsistent with an increasingly heterogeneous society.