Senate Democrats yesterday asked the Federal Communications Commission to investigate Verizon's throttling of firefighters during California's largest-ever wildfire.

US Sens. Dianne Feinstein (D-Calif.) and Kamala Harris (D-Calif.) also sent a letter to Verizon, accusing the carrier of misleading the fire department in its marketing of unlimited data. Additionally, the Democrats sent letters to the other major carriers asking for commitments that they won't throttle the data of public safety officials while they are responding to emergencies.

Though FCC Chairman Ajit Pai eliminated net neutrality rules, the commission maintains a revised version of a transparency rule that requires carriers to publicly disclose enough information about network management practices and commercial terms of service "to enable consumers to make informed choices regarding the purchase and use of such services."

"As you know, a key part of the FCC's work is to ensure that Internet service providers such as Verizon are transparent about the terms of the services they provide to customers," Feinstein and Harris wrote to Pai in yesterday's letter. "Communications between the [Santa Clara County fire] department and Verizon suggest that SCFD believed the data plan it purchased from Verizon was not subject to any data limits or throttling. We therefore ask the FCC to investigate whether Verizon violated [the transparency rule]."

Verizon has argued that the throttling "has nothing to do with net neutrality," but the ISP acknowledged that it "made a mistake in how we communicated with our customer about the terms of its plan."

“Unlimited” marketing deceptive, senators say

In their letter to Verizon, Feinstein and Harris wrote:

We remain concerned that SCFD may have been told that their plan was "unlimited," only because they could continue to purchase more data once they hit their data caps. If this was the case, then this strikes us as disingenuous marketing. By this logic, any restaurant with a menu is a "buffet". While we appreciate that Verizon has made a promise to lift data caps on its public safety customers in the event of a future disaster, we would like to know more about how this came about in the first place, and Verizon's specific plans to ensure that it won't happen again.

Verizon has called the Santa Clara throttling a "customer support mistake," saying that the carrier failed to follow its policy of removing data speed restrictions for public safety officials when contacted during emergency situations.

Feinstein and Harris asked Verizon what steps it takes to alert public safety departments that their "unlimited" plans are actually subject to data caps and throttling. They also asked Verizon if any executives knew about the throttling during the wildfire and whether those executives will be "held responsible."

In their letters to the other carriers, Feinstein and Harris asked, "What specific protocols are you implementing to ensure that public safety customers are exempt from data caps or throttling in the future when they are actively responding to emergencies?"

AT&T, which operates the government-subsidized FirstNet network for public safety agencies, has already said that it "doesn't throttle" FirstNet plans.

Questions for carriers

In addition to investigating Verizon, the senators asked Pai to request information from AT&T, T-Mobile, and Sprint. According to Feinstein and Harris, these are the questions that the FCC should ask the carriers:

How do you ensure that your public safety customers are aware of restrictions on their data plans (in advance of purchase), including data caps and conditions for reduced speeds? Do you currently impose any data caps or reduce speeds after a certain point on any service plans purchased by public safety customers? Please specify the conditions under which speeds are reduced, and the criteria used. In the event that you answered affirmatively to the second question, what protocols do you have in place to allow public safety customers to designate certain mission-critical activities (such as actively responding to an emergency) that are then exempt from any data caps or throttling?

We asked Pai's office about the Democrats' letter today and will update this story if we get a response. As far as we can tell, Pai hasn't yet made any public statements on Verizon's throttling of Santa Clara firefighters, although he has made time to comment on various other matters outside the FCC's purview.

FCC gave up regulatory powers

Separately, Sen. Ed Markey (D-Mass.) and Rep. Anna Eshoo (D-Calif.) last week wrote a letter to Pai criticizing the FCC for its decision to deregulate the broadband industry, which could prevent the FCC from taking any action against Verizon.

Since the FCC largely gave up its regulatory powers over broadband networks, 13 Democratic members of Congress recently asked the Federal Trade Commission to investigate Verizon's throttling of the fire department. The FTC doesn't enforce any rule against throttling, but it can sue companies when they deceive consumers about the terms of their service.

After its throttling came to light, Verizon promised to offer a new unlimited plan "with no caps" and with priority access for first responders. Verizon said on August 24 it would provide full details on the plan "next week," but that deadline has passed without any further announcements that we could find. We asked Verizon for an update earlier this week but didn't get a reply.