In August, it was revealed that Verizon throttled the wireless broadband services of fire fighters in the middle of a state emergency and spent four weeks debating with the local fire department while trying to upsell them a more expensive plan. This week, the Santa Clara Board of County Supervisors held a hearing to review what happened during the state’s worst fire in history. The hearing revealed that, Verizon’s statements to the contrary, nothing about this public safety issue has been resolved.

EFF testified at the hearing to provide an understanding as to the legal and technical issues that are part of the conflict to assist the county in its review. In addition, EFF believes Verizon’s conduct would have subjected them to penalties under the 2015 Open Internet Order, because the actions by Verizon’s sales team appeared to be unjust and unreasonable under Title II of the Communications Act. Verizon have fully admitted that they were at fault and wrong to have engaged in the conduct and have offered to end some of the business practices that led to the problem for the west coast states and Hawaii.

That said, the fact that the debate has centered so much on what Verizon is willing to do is part of the problem.

It is not, and should not be, a corporation’s job to figure out the balancing act between public safety and its profits.

During the hearing, Verizon made it very clear that they regretted what happened and that it should not have happened. To their credit, they have made a series of proposals to eliminate throttling of a handful of public safety entities and are appearing to end the practices that led to the Santa Clara fire incident. But it became apparent in the hearing that Verizon is ill-equipped to do the deep thinking on what is the best outcome for public safety purposes. The fact that they had wireless broadband plans that throttled fire departments to 1/200th of their broadband speed—basically reducing them to dial-up speeds—has made it painfully obvious that they do not think proactively about these issues.

And we shouldn’t be asking them to. They only get to make these mistakes because the FCC completely abandoned its duties to oversee and regulate the industry. Verizon, as a for-profit corporation, has a legal duty to its shareholders to maximize the value of their product of broadband Internet access. As we’ve explained in detail before, the FCC used to have a duty to promote public interests—such as the balance between public safety and monetization of a service—and it used to have the power to enforce protections of those interests. The so-called “Restoring Internet Freedom Order” represents the FCC walking away from those responsibilities.

As a result, there is no federal entity with the duty to establish policies that promote the public safety of all Americans for broadband. In the total absence of rules and public policy, nothing serves as a counter weight to the profit motive. Therefore it is not surprising to anyone that months after the fact Verizon and the fire department still have not reached an agreement that works for public safety. We are literally asking Verizon to figure out how to make less money and are hoping the internal political calculus of a corporate behemoth will result in a net good for community safety. That is an absurd idea.

There is no good reason for throttling a fire department during an emergency. And yet, the hearing showed that the problem remains.

Verizon’s decision to throttle a public safety customer to 1/200th of their original wireless broadband speed had nothing to do with network management and everything to do with how you make a customer pay more for the service.

Reasonable network management is a general exemption from net neutrality rules because the FCC and any network engineer knows there are times when your network is overloaded and you have to make decisions on bandwidth allocations. But whenever the network is not overloaded, there are zero technical reasons to ration or reduce consumption, because you have plenty of capacity for the delivery of your service. During the hearing, a Verizon representative briefly attempted to conflate data caps and overage fees with network management. But that was abandoned as an argument, likely because those two things aren’t actually necessary for network management.

Supervisor Chavez articulated a useful analogy to the freeway system and managing car traffic. Congestion is basically the rush hour part of traffic, but when the roads are empty and it's 3 am we likely do not have any reason to worry about traffic jams.

The fact that Verizon appears to have mostly ended the practice of throttling for a handful of public safety entities indicates that this was all the product of corporate decision-making focused on profits. Chair Simitian has given Verizon until December 1st to come up with a solution or he will be forced to take action, which likely means further debates and legislation in Sacramento in 2019.

As a reminder, this is why Verizon asked the FCC to preempt state laws at the same time it was asking the FCC to stop overseeing them as an industry. There is little value to companies like Verizon, Comcast, and AT&T escaping federal oversight if states are empowered to fill the void and regulate them in the absence of the FCC. This is where that void leaves us: a for-profit company getting to make public safety determinations.