Federal Communications Commission Chairman Ajit Pai and his staff are fond of taking to Twitter to assert that, in the just over two months since the repeal of the FCC’s 2015 network neutrality rules took effect, the “Internet remains free and open” — and that opponents’ concerns that unconstrained broadband providers will act in a way that harms consumers and competition are overblown. The 2015 rules prohibited broadband providers like Verizon, Comcast and AT&T from picking winners and losers by blocking, throttling or otherwise discriminating against or favoring certain Internet traffic.
Pai’s rose-colored glasses were smashed this week when it was revealed in the lawsuit challenging the repeal that Verizon had severely throttled the Santa Clara County Central Fire Protection District’s so-called “unlimited” broadband data service during the Mendocino Complex Fire, the largest in California state history. The FPD has attempted to use the broadband service to provide crisis response and essential emergency services, but it had been slowed to dial-up speeds.
Since December 2017, and then in a series of increasingly desperate emails this June and July, the FPD battled with Verizon, begging them to cease the throttling and warning the company of the potential harm to public safety during major emergencies and disasters. It wasn’t until the FPD agreed to pay more than double the cost of its previous service that Verizon ended the throttling.
Verizon’s response to this episode was that it was solely a customer service “mistake” and that “the situation has nothing to do with net neutrality or the current proceeding in court.” But nothing could be farther from the truth: This event has everything to do with net neutrality — and the Trump FCC’s concurrent abdication of its responsibility to protect consumers and competition in the broadband market.
Verizon’s actions demonstrate plainly why net neutrality rules are needed: In the absence of rules, Verizon and other broadband providers will put profits over people even when it comes to matters of life and limb. A federal court of appeals in Washington D.C. has twice confirmed (here and here) that net neutrality rules were necessary because broadband providers’ position as gatekeepers to the internet give them “incentive and ability” to favor their own economic interests over the public interest.
Verizon’s argument appears to be that, since the FPD paid for a lower level of “unlimited” broadband service that nonetheless allows the company to throttle their data once a certain limit is reached, there is no net neutrality violation. If the FPD wanted an actually “unlimited” service (i.e., with no data caps), their argument goes, it should have purchased a higher and more expensive level of unlimited service in the first place.
But even assuming that Verizon’s actions were not technically a violation of the 2015 net neutrality rules’ express prohibition against throttling internet traffic, the company’s actions may still have violated the 2015 rules.
Those rules permitted complaints to be filed pursuant to what was called the “general conduct rule,” which prohibited broadband providers from unreasonably interfering or disadvantaging “end users’ ability to select, access, and use broadband internet access service or the lawful internet content, applications, services, or devices of their choice.” Certainly, the FPD could have made a persuasive case that Verizon was unreasonably interfering with its ability to use broadband internet access service. But, since the repeal of net neutrality, that avenue was not available.
Equally important, the Trump FCC’s net neutrality repeal entirely abdicated the agency’s role in protecting consumers and competition in the broadband market. The 2015 order adopting the rules determined that broadband providers (like telephone companies) were “telecommunications services” under Title II of the Communications Act. This was essential for the net neutrality rules to survive a court challenge, and it gave the agency the ability to oversee the broadband market for the first time since 2002.
But the Trump FCC reversed that decision, taking broadband providers out of Title II and expressly gave the agency's oversight over broadband to the Federal Trade Commission, which has far more limited legal power than the FCC.
That decision left the FPD without any legal recourse in its discussions with Verizon, forcing it to engage in a months-long debate over throttling and broadband prices.
Had the FCC maintained its oversight over broadband, the FPD could have filed a complaint alleging that Verizon’s throttling of its emergency services and doubling of its broadband costs were unjust and unreasonable charges and practices prohibited by Title II. But the repeal made that option impossible.
The throttling of the Santa Clara County FPD’s broadband service was a disaster waiting to happen. In the absence of net neutrality rules and without strong FCC oversight, broadband providers like Verizon, Comcast and AT&T are free to run their networks as they please without regard to consumers, competition or public safety. The only good news is that there are efforts right now both in Congress and the courts to reinstate the 2015 rules — which is part of why the FCC keeps promising that nothing has changed since the repeal of net neutrality. The people of Santa Clara County, though, might disagree.
Gigi Sohn is a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy and the Benton Foundation Senior Fellow and Public Advocate. She was Counselor to former FCC Chairman Tom Wheeler from November 2013-December 2016.