False Alarm: Verizon’s Fire Department Customer Service Fail Has Nothing to Do with Net Neutrality

And We Don’t Need the FCC to Do What the FTC Does Every Day: Protect Consumers

For an updated analysis of this issue, see TechFreedom’s April 2020 comments to the FCC, which explain that Santa Clara’s data plan wasn’t even covered by the FCC’s 2015 net neutrality rules because it wasn’t a consumer-grade service.

Net neutrality activists are having a field day with last week’s Ars Technica report that Verizon “throttled” the mobile data usage of the Santa Clara County Fire Prevention District (FPD), one of the California counties currently fighting the largest wildfire in the state’s history. Gigi Sohn, who’s led the net neutrality movement for over a decade, claims, in an NBCNews op-ed, that the FCC’s 2015 net neutrality rules would have prevented Verizon from “restricting” the fire department’s Internet service.

Sohn and others are ignoring the facts and misconstruing the law to fit their long-standing political agenda. What really happened wasn’t a net neutrality issue: the FPD simply chose a data plan for their mobile command and control unit that was manifestly inappropriate for their needs. The FPD needed a lot of high-speed 4G mobile data — up to 300 GB/month when the device was deployed. (The typical consumer uses ~4 GB/month.) Verizon sold such pay-as-you-go plans to government users, but FPD opted for a much cheaper plan: up to 25 GB at 4G speeds, with slow speeds after that point. The 2015 Open Internet Order is quite explicit that data plans with speed restrictions don’t violate the throttling rule, so long as the company is clear about what users are getting.

Make no mistake: public safety communications are vital, and what happened involved mistakes by all parties involved. Verizon may or may not have been clear enough about the difference between the two plans, and using the word “unlimited” to refer to the kind of cheaper plan FPD chose might be confusing, since consumers do get as much data as they want to use — but not, once they reach their basic data allowance, at 4G speeds. But even if Verizon did mislead its customers (and it’s not clear they did), it wouldn’t really be a net neutrality issue requiring special FCC rules; it would be a standard consumer protection issue, the kind the Federal Trade Commission deals with all the time. Indeed, the FTC has already sued AT&T over how it marketed its own “unlimited” plans, and after the Ninth Circuit ruled that the lawsuit could proceed, the company settled.

But Sohn is right about one thing: the FCC could have found Verizon to be violation of the 2015 Order’s “general conduct” standard, if that were still in place (or at least, the underlying statutory authority: Title II of the 1934 Communications Act). But that merely proves the infinite elasticity of that… well, it’s not really a “standard,” because that word implies some limitation upon the regulator’s discretion — whereas this was a blank check for the FCC to declare any broadband practice illegal.

And here, in a nutshell, is the essence of the net neutrality debate: (1) widespread agreement on the “rules” (no blocking, no throttling, transparency and even how to address paid prioritization) — but (2) a complete deadlock as to whether the agency should, in addition to enforcing those rules, have broad discretion to do anything else it wants.

Congress could have codified net neutrality a decade ago — as I’ve explained many times. Failing to legislate allowed this issue to become hopelessly politicized. In 2014, thanks to John Oliver, Sohn and a small band of hardcore activists succeeded in redefining the issue: “strong” net neutrality now meant that the FCC had to be able to regulate broadband as a public utility under Title II — which allows the agency to… you guessed it… regulate “common carriers” basically however it sees fit. That regime was first applied to the Ma Bell monopoly telephone network, based on regulation of railroad monopolies in the 1880s — both circumstances where competition was impossible.

Sohn and co. may talk about public safety, but what they really want, more than anything, is the ability to regulate broadband prices. Democrats emphatically rejected that idea in the late 1990s, and continued to until 2014. In 1998, John Kerry and Ron Wyden warned that Title II “seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.” Bill Kennard, President Clinton’s FCC Chairman, likewise said: “‘I don’t want to dump the whole morass of Title II regulation on the cable pipe.” And why not? Because nothing deters investment like the government’s ability to dictate, or second-guess, prices.

The “Broadband Price Controls” gang thought they had won — until Hillary’s surprise defeat. In late 2017, the Republican FCC did what everyone always knew they would do: rolled back the Title II classification in the 2015 Order. This wasn’t because Republican Commissioners were against net neutrality, but because they think Congress never intended the FCC to regulate broadband under Title II service. Undoing Title II reclassification did, necessarily, mean ending the FCC’s 2015 rules (except the transparency rule, which could stand on simpler legal authority).

That roll-back finally took effect this June. Yet, and contrary to the Chicken Little hysteria of almost every media report on the topic of net neutrality for years, nothing changed: the Internet went trucking along just fine, “free and open” as ever.

So Sohn and others needed a way to get their base fired up again — and to keep the donations flowing. (Since John Oliver’s 2014 segment on the issue, the activist groups pushing for Title II have seen their budgets explode.) The idea that Verizon was — gasp! — “throttling” firefighters made for the perfect narrative: evil broadband company versus John Q. Public. It’s so perfect… one has to wonder if there’s more to the story. But first, let’s explain what really happened, and the legal mechanisms to address it.

Three Key Mistakes

The particular 4G wireless device at issue here provides connectivity for FPD’s command and control system. It gets deployed only when firefighting teams from multiple jurisdictions are deployed to fight a single, massive fire — when there needs to be a technical interface to ensure they can all communicate with each other.

There were essentially three mistakes along the way that led to this blow-up:

Mistake #1: Selecting the Wrong Data Plan: Two critical facts: (1) when deployed, the device can consume a whopping 5–10 GB/day and (2) it doesn’t work without 4G speeds. Despite knowing this, FPD bought the cheapest possible data plan: $37.99 for unlimited data — but 4G speeds only for the first 25 GB/month (and much slower speeds beyond that). Knowing they might need as much as 300 GB/month at 4G speeds, the FPD clearly should have bought one of Verizon’s pay-as-you-go plans. Those plans are more expensive (especially when you consider the overage charges the FPD might incur if their device were deployed more than a few days a month) — but they have no speed restriction. Here’s the menu of such plans Verizon sent FPD in early July:

Could Verizon have done more to avoid confusion between the two plans? Maybe. But that’s a pure question of deceptive marketing — right up the FTC’s alley. You don’t need Title II for that

Mistake #2: Confusion Over Getting the Speed Restriction Dropped: Just out of a sense of “corporate social responsibility,” Verizon has a general policy of suspending the speed restriction whenever a government says the device is necessary for an emergency. It’s not clear whether the policy was to suspend for a single month or potentially several — if the government user said the emergency would last longer — but the key point is that such suspensions are temporary. Verizon has no way of verifying such requests, so to prevent abuse, they simply require the user to call back in to repeat the request. Otherwise, there’d be nothing to stop fire departments from, for example, claiming that a wireless router was needed for emergencies, when in fact it was simply used to stream Netflix all day in the break room — something the company tells me did happen in some cases under the initial version of the policy, resulting in terabytes of monthly data usage.

Last December, apparently the last time the unit was deployed (and possibly also the first time — we don’t know), Justin Stockman, one of the FPD Fire Captains, complained to Verizon about the speed restriction, so Verizon suspended it — temporarily. But in late June, the next time (apparently) the unit was deployed, Captain Stockman emailed Verizon, recalling that the speed restriction had been suspended back in December, but adding that this Verizon rep had “communicated that Verizon had properly re-categorized the device as truly ‘unlimited.’” It’s not clear whether the Stockman misunderstood what had happened back in December (and, if so, whether the Verizon representative simply wasn’t clear in his explanation) or whether he simply misremembered what had happened.

Mistake #3: Failure of Verizon Training: When Stockman complained in late June, the new Verizon customer service rep handling the issue, Silas Buss, should have immediately dropped the speed restriction, just as in December — as Verizon has readily acknowledged. But, from the email exchange, Buss didn’t seem to be aware of the corporate policy.

To understand how this all happened, it’s important to note that no one from FPD reminded Buss of the policy (not that it was the customer’s responsibility to do so, but just for context), because they insisted the device had simply been exempted from the speed restriction — which was impossible. In short, confusion on both sides.

Why this Isn’t a Net Neutrality Issue

Under the 2015 Open Internet Order, it was perfectly lawful to offer customers the choice between (1) unlimited data plans with speed restrictions beyond the basic data allowance or (2) pay-as-you-go plans with no speed restriction: “Usage allowances may benefit consumers by offering them more choices over a greater range of service options, and, for mobile broadband networks, such plans are the industry norm today, in part reflecting the different capacity issues on mobile networks.” The Order specifically discussed speed reductions like Verizon’s:

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. If the Commission were concerned about the particulars of a data plan, it could review it under the no-unreasonable interference/disadvantage standard.… We note that user-selected data plans with reduced speeds must comply with our transparency rule, such that the limitations of the plan are clearly and accurately communicated to the subscriber.

In other words, the FCC recognized that the kind of plans offered by Verizon were generally beneficial: obviously, if all data plans had to include unlimited usage at top speeds, the vast majority of users (all but the biggest data users — like FPD) would pay more. So instead of banning such plans, the FCC proposed two ways to deal with potential concerns.

First, the FCC would enforce its 2010 transparency rule to make sure service plan information was clearly disclosed. That rule was a pale imitation of what the Federal Trade Commission has been doing for decades: ensuring that consumers get the benefit of a bargain. That making sure both (a) that the bargain is clear and (b) that companies don’t fail to provide “material” information (i.e., information that might have influenced their choice).

Second, the FCC could have evaluated Verizon’s data plans under the “general conduct standard.” As Sohn writes:

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.

Indeed, the FCC could have declared Verizon’s practice illegal — even though it wasn’t covered by the throttling rule. But it’s worth noting two things. First, the Open Internet Order contemplated applying that standard for a completely unrelated concern. After noting the benefits of speed-restricted plans (quoted above), the Order said:

Conversely, some commenters have expressed concern that such practices can potentially be used by broadband providers to disadvantage competing over-the-top providers. Given the unresolved debate concerning the benefits and drawbacks of data allowances and usage-based pricing plans, we decline to make blanket findings about these practices and will address concerns under the no-unreasonable interference/disadvantage on a case-by-case basis.

The text of the General Conduct Standard clearly focuses on anti-competitive ways that ISPs might interfere with the way consumers used the Internet:

Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access,and use broadband Internet access service or the lawful Internet content, applications, services,or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services,or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

Sohn, who helped lead the writing of the Order as a top advisor to then-Chairman Tom Wheeler, now insists the FCC could have used the general conduct standard to address a fundamentally different concern: not that Verizon was structuring its plan offerings to favor its own affiliated services (say, a home video security service not subject to the data cap), but simply that she doesn’t think fire departments (or, by the same logic, anyone) should have to pay the Verizon was charging for extremely large volumes of data use. (Again, note that the FDP’s device could use seventy-five times as much data per month as the typical consumer — yet Sohn seems to insist they should both be charged the same flat monthly rate.) Yes, it’s a brazen bait and switch, but as a legal matter, she’s right: the general conduct standard was so broadly worded that it could have allowed the FCC to declare any practice illegal.

When the FCC first announced the General Conduct standard in 2015 (the 2010 Order contained no such provision), FCC Chairman was asked what it meant at a press conference. He replied:

We don’t really know. We don’t know where things will go next. We have created a playing field where there are known rules, and the FCC will sit there as a referee and will throw the flag.

In other words, the FCC could do whatever it wants. In 2015 (after President Obama backed him into a corner and forced him to abandon his plans to avoid using Title II), Wheeler became the most ardent defender of Title II. He disclaimed any intention to regulate prices (the principal objection to Title II), and insisted that the FCC had avoided such a possibility by granting “sweeping forbearance” from a slew of provisions in Title II, including one specifically dealing with price regulation. But the FCC did not forbear from the core Title II powers under Sections 201(b) and 202(a). Those provisions are all the FCC needs to set prices — and gave the FCC free rein to regulate broadband. The “General Conduct Standard” is simply a combination of these two provisions (and, arguably, may be even more open-ended).

That’s what is so brilliant, and disingenuous, about Sohn’s argument — and the entire framing of this story in so many media reports. Sohn and her allies have finally found the perfect poster child for their real agenda: invoking public safety to justify giving the FCC unfettered discretion to regulate any aspect of broadband service — while making price regulation seem unobjectionable, even normal. “Of course, the government should decide how much broadband should cost!”

Sohn and her allies have finally found the perfect poster child for their real agenda: invoking public safety to justify giving the FCC unfettered discretion to regulate any aspect of broadband service — while making price regulation seem unobjectionable, even normal.

This, rather than opposition to net neutrality, is the nightmare scenario that caused broadband providers (as well as nearly all Democrats until 2014) to oppose Title II.

There is one catch that Sohn doesn’t mention: Yes, it’s true that the FCC’s general conduct standard and the underlying authority in Section 201(b) would have allowed the FCC to sanction Verizon here, and effectively require the company to give away unlimited data service with no speed restriction to public safety users, government users, or any other class of users the agency wanted (including all users) for a fraction of what the company wanted to charge. (Again, we’re talking about FPD effectively paying the same monthly rate as the typical consumer, despite using as much as 75 times more data.) But the FCC tied itself into a bind by, at the same time, issuing a ban on “paid prioritization” so broadly and vaguely worded that giving one class of users access to unlimited data usage with no speed restriction for any fee (even if it’s less than most users would pay) could amount to payment for prioritization. Think about it: you get up to 25GB/month and the FPD, for the roughly the same price, gets 300 GB. How is that not prioritization?

Now, you might say that the FCC could simply choose to overlook its paid prioritization rule in this particular case — because it’s “good” prioritization and this isn’t the typical “prioritization” fact pattern. Maybe, but it’s not clear how a court would handle this situation if the provider challenged the agency’s action as arbitrary and capricious. More importantly, though, we’re no longer talking about the FCC enforcing such a rule, but rather states. California is just one state to have passed its own version of the 2015 Open Internet Order. There’s no telling how 50 states might interpret such a rule in situations like this.

What Doesn’t Quite Add Up about this Story

Thus far, I’ve taken everything the FPD asserts for granted — and I’m not suggesting their employees were anything other than confused. But when you consider how this case ties in with the litigation over the FCC’s authority, a distinct political subtext emerges.

This isn’t just any fire department we’re talking about here. The FPD joined Santa Clara County in filing suit against the FCC back in February. Santa Clara is the only local government to have done so — and thus effectively represents the concerns of all local governments.

The remarkable coincidences don’t stop there. Last December, James Williams, the top lawyer for Santa Clara County, filed 15 pages of detailed comments with the FCC insisting on the need for Title II. Among his principal arguments was that the FPD needed the FCC to guarantee net neutrality for the use of the exact device at issue here. Clearly, Williams was intimately familiar with how this device worked. He may or may not have been aware, when he made that filing, of the details of how the FPD first (apparently) encountered the speed restriction on this device, and the situation resolved it — i.e., that Verizon temporarily lifted the restriction, not permanently, as the FPD claimed in June. But whether the filing or that incident happened first hardly matters, because Williams had to be aware, at some point in December, of what had happened, given his focus on net neutrality concerns specific to the FPD and his focus on this exact device.

Having parsed the FPD’s two rounds of email exchanges with Verizon closely, I don’t doubt that the Fire Department employees were simply, genuinely, confused and frustrated. Internal miscommunication — and especially miscommunication over time, in failing to record what was said for the benefit of the organization months or years in the future — is an inherent problem in a bureaucracy of any size, miscommunication can occur.

What’s hard to understand, though, is how the FPD could go through the same issue not once, not twice, but three times, on three separate deployments in the field (December 2017; June 29 — July 5, 2018; and July 29–30) and then, three weeks later, their experience winds up in a legal brief as evidence of the dire public safety implications of the FCC’s inability to regulate broadband — all without the county’s lawyer clearing up the confusion about what was happening and how to ensure uninterrupted use of the device for public safety in the future.

I’ll give public safety professionals the benefit of the doubt every time: Firefighters put their lives on the line all the time; obviously, they care far more about making sure all their equipment works in an emergency than anyone’s litigation strategy. But given the obviously close involvement of the County’s lawyers in the FPD’s issues, one has to wonder about their role in advising the FPD at least three points in this story:

Why did the FPD stay on a manifestly inappropriate data plan? Maybe the FPD thought that they could have it both ways: stay on the cheapest plan but get the speed restriction dropped permanently. Maybe they never understood that the only way to get what they wanted was to buy the more expensive data plan. But the county’s lawyer? The guy who cared enough about this issue to file 15 pages of FCC comments around the same time as the FPD’s first encounter with the speed restriction — and who enlisted the FPD as a co-plaintiff three months later? He couldn’t figure it out?

Or he didn’t think to advise the FPD either to switch plans or to make sure to specifically invoke Verizon’s generous policy of asking to have the speed restriction temporarily lifted upon each emergency? He didn’t understand that these were the only two ways to ensure uninterrupted data service for a mission-critical device? It just doesn’t add up.

Why didn’t the lawyers help resolve confusion in June and July? The second conversation with Verizon, in late June, was polite enough, with Justin Stockman, the Fire Captain, explaining the problem to Verizon’s Silas Buss. By late July, FPD’s frustration’s had peaked. On July 29 (late on a Sunday night), Dan Farrell, FPD’s systems analyst, sent Verizon a curt email:

Remove any data throttling on OES5262 effective immediately.

And then early the next morning:

Please work with us. All we need is a plan that does not offer throttling or caps of any kind.

Obviously, Farrell’s frustrations had peaked. But Buss had already explained, back on July 9, how FPD could chose such a data plan — including an attachment laying out the available data plans. This confusion could have been resolved weeks earlier — simply by switching to the kind of pay-as-you-go-plan that the County’s lawyers should have realized was the only plan appropriate for the device back in December. So why wasn’t the situation resolved? When were did the County’s lawyers get involved?

Obviously, they did get involved at least early August, because they drafted an affidavit for the Fire Chief, and reconstructed the email thread — all for inclusion as Exhibit A attached to Mozilla’s brief arguing against repeal of Title II. (Mozilla joined Santa Clara County and FPD as co-plaintiffs in the litigation back in February.) But were they aware of what was happening during the two conversations with Verizon about the speed restriction in two separate deployments in late June and late July? If so, why didn’t they help resolve the confusion? Surely, someone in the County Counsel’s office must have been paying attention back in December, and must have understood that the speed restriction could only be lifted temporarily — unless FPD switched to the pay-as-you-go plan. If that wasn’t obvious in December, it should have been by July 9. Yet the issue continued unresolved.

If this were any other fire department in America, maybe it wouldn’t be reasonable to expect the FPD to mention this issue to their lawyers — or for their lawyers to engage. But remember, the FPD had already joined Santa Clara County in a lawsuit against the FCC back in February. The County’s lawyer, three months before that, had warned the FCC of the public safety implications of rolling back Title II, citing this exact device. So it’s hard to believe that the lawyers were made aware of what was happening only after the second dispute with Verizon in a month — which also happened to be just in time to turn those two incidents into an Exhibit A in a legal filing insisting on the need for Title II.

How did the lawyers decide what to tell the court? Even if the County’s lawyers only got involved after July 30, they still had the opportunity to decide how to present this issue to the court — specifically, what to say in the affidavit they drafted for the Fire Chief and which emails to include to document what had happened. The affidavit concludes:

County Fire believes it is likely that Verizon will continue to use the exigent nature of public safety emergencies and catastrophic events to coerce public agencies into higher cost plans ultimately paying significantly more for mission critical service — even if that means risking harm to public safety during negotiations.

Presumably, since the Fire Chief signed the affidavit, this seemed like an accurate summary of the situation to him. Note, though that he had recently been promoted to the position and may not have been closely engaged (or engaged at all) in any of the three rounds of conversations about the data plan (December, June and July).

But the County’s lawyers had to know that the affidavit’s summary description didn’t really accurately characterize what had happened: they had to know, at some point (even if only in August, when it was too late), that (1) the FPD had always had the option of picking a pay-as-you-go-plan with no speed restriction, but (2) that the FPD instead opted to stay with a speed-restricted plan and (3) that that plan made sense only on the understanding that it would be necessary to invoke Verizon’s policy of temporarily suspending that speed restriction upon request. Yes, Verizon’s customer service representative failed to apply that policy in June and July, but the FPD didn’t mention it either — insisting that the device had been permanently exempted from the speed restriction. Again, that’s perhaps an understandable mistake for the FPD to make, but the county’s lawyers, who negotiate procurement all the time, had to have known better.

It’s also worth noting that the emails the County’s lawyers decided to include in the record tell only part of the story: There are no emails from December, which might have made more clear what, exactly, Verizon told FPD about the policy, why they decided to stay on that data plan, etc. And of course, while there are internal emails among FPD staff, there are no emails between FPD and the county’s lawyers — so there’s no way to tell how involved the lawyers were or when they got involved, or what they knew. Seeing those emails would certainly help to explain what had happened.