By Victoria Trent

Verizon has been in the spotlight recently based on its treatment of the Santa Clara County Fire Department’s Internet service this summer, illustrating that not all press is good press. This past summer, California firefighters exceeded a monthly data plan with Verizon as they battled the giant Mendocino Complex fire that began in July, triggering an Internet slowdown to 0.5 percent of the plan’s normal speed. Slowing down data speeds after a customer reaches its monthly data limit, known as “throttling”, is a common practice among Internet service providers. Naturally, these reduced speeds had a significant impact on the fire department’s ability to provide emergency services in the midst of the blaze.

According to Verizon, the fire department was entitled to an “unlimited” amount of data under its Internet plan, but speeds were reduced after the Fire Department exceeded its allotment. In response, the department’s technology staff members emailed Verizon, requesting that it end the throttling immediately due to public safety concerns. Verizon denied the request, and only restored the data speeds after the department upgraded its plan. The incident left the fire department and many others with a sense of unease. Verizon has since conceded that it typically removes data speed restrictions when contacted in emergency situations, characterizing the incident as a customer service mix-up.

Experts are divided over whether Verizon’s handling of the situation would have violated net neutrality principles under the now-reversed 2015 rules. In December, the Federal Communications Commission overturned the 2015 Open Internet Order, ending the previous consumer protections that barred Internet service providers from speeding up, slowing down, or otherwise prioritizing web traffic based on corporate deals. The FCC rollback, which took effect on June 11th, 2018, returned the Internet’s classification to an information service under Title I of the Communications Act, instead of a Title II utility, eliminating the FCC’s legal authority to enforce online conduct rules.

It is important to examine Verizon’s use of throttling through the lens of net neutrality because the incident showed that Internet service providers “will act in their economic interests, even at the expense of public safety.”The repeal of net neutrality seemingly allows and even encourages this behavior. As a result, 21 states and the District of Columbia together filed a lawsuit that essentially seeks to restore net neutrality. The County of Santa Clara, the Santa Clara County Central Fire Protection District, and the California Public Utilities Commission are also petitioners in the lawsuit, asserting that when the FCC struck down net neutrality rules, it failed to consider the public’s need to access a free and open internet for government services.

This incident tests the Federal Trade Commission’s enforcement authority in the wake of the net neutrality rollback, giving insight into the future of open-internet enforcement. However, some experts fear that there are circumstances which will fall into a regulatory enforcement gap where neither the FTC nor the FCC is authorized to take action. Although the FCC handed Internet oversight to the FTC, the FCC continues to maintain a Public Safety and Homeland Security Bureau, which has unique expertise in public safety and a duty to ensure communications systems, including wireless service, do not let customers down during critical times.

Lawmakers believe that the FCC has a responsibility to look into the incident even though it handed primary oversight of Internet service providers to the FTC. This responsibility stems from the agency’s jurisdiction over public communications during times of disasters. Similarly, some lawmakers agree that the FTC must investigate whether Verizon’s practices were “unfair or deceptive,” per the agency’s mandate. After all, the FTC has the affirmed authority for this type of probe, as it pursued similar charges against AT&T for throttling unlimited mobile plans.

The results of this potential investigation would significantly impact the ways that Internet service providers treat their customers, appeasing some lawmakers depending upon their views on net neutrality. Additionally, California lawmakers have wasted no time in trying to affect change. In late August, the California State Legislature passed a bill that, if implemented, would “ensure that California protects full access to the Internet.” Meanwhile, Verizon remains adamant that the incident at issue does not concern net neutrality.

Student Bio: Victoria Trent is a second-year student at Suffolk University Law School and is a staff member of the Journal of High Technology Law. She holds a Bachelor of Arts in Economics with minors in Psychology and Dance from Case Western Reserve University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School

 

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