Verizon California Throttling Mistake Shows How Radical Pai’s Repeal Order Really Was.

Congress created the Federal Communications Commission (FCC) in order to ensure we would have working communications infrastructure for, among other things, handling public safety. It says so right up front in Section 1 of the Communications Act. This critical authority has allowed the FCC to do things like impose 911 obligations on VOIP providers before Congress got around to it, and even set up the original High Cost and Lifeline Programs before Congress got around to it. So you would think that when Verizon throttled the Santa Clara Fire Department’s mobile broadband connection for coordinating response to the Mendocino Complex Fire — the largest wildfire in California history — that the FCC would naturally be all over it.

 

The vast and mighty silence you hear is the utter lack of response by the FCC — for the simple reason that last December the FCC utterly, completely and totally divested itself of all authority over broadband. This was, as I and others pointed out at the time, utterly, completely and totally unprecedented. Regardless of classification, every single FCC chairman prior to Ajit Pai asserted authority over broadband to prevent exactly this kind of disaster. Under Michael Powell and Kevin Martin it would be under Title I ancillary authority. Under Julius Genachowski and Tom Wheeler (prior to reclassifying broadband as Title II in February 2015), it would have been under Section 706. Under Ajit Pai — bupkis.

 

Which leaves us with a major problem. How the heck do we stop this (and other potential failures of our broadband infrastructure) from happening again when the agency Congress actually directed to handle this has decided to abdicate its responsibility entirely? I have been preaching for nearly 10 years now that Title II authority over broadband is absolutely necessary to protect and manage our critical communications infrastructure. As I keep saying, this goes way beyond net neutrality. As broadband becomes integrated into everything in our lives – including public safety – there needs to be someone other than a group of unaccountable private companies looking out for the public interest. Because, as this event demonstrates, we are not just talking about ‘Netflix and cat videos’ or about ‘innovation’ or any of the other industry deflections. We are talking about stuff that literally impacts people’s lives. According to this report from NPR, the Verizon incident occurred just at the moment firefighters were deploying to stop the Mendocino Complex Fire. It’s impossible to determine just how much this screwed things up and whether the fire could have been better contained at the outset if throttling hadn’t knocked out their entire command-and-control for hours at the outset. But it is certainly safe to say that the first few hours of organizing to contain a wildfire are critical, and having your ISP throttle your command center broadband connection down to effectively useless is like trying to organize a parade while wearing a blindfold, earplugs and a gag over your mouth.

 

Happily, we have an easy answer to the question of “how do we make sure someone is responsible from preventing these kinds of screw ups going forward.” Congress needs to vote the CRA and force the FCC to take back authority for broadband. Or, if you’re California and don’t like seeing your state literally go up in flames while on hold with customer support, then you need to pass SB 822 — the California net neutrality bill. Anything else is literally fiddling around while California burns.

 

Lots more below . . .

Let’s clear the underbrush first. The fact that this was, in Verizon’s own words, “a mistake in how [VZ] communicated” with their customer about the plan limitations and that Verizon (again in its own words) should have followed its usual practice of suspending data limits for public safety during an emergency does not make matters better from the perspective of preventing disasters from happening in the future. To the contrary, this underscores that the broadband environment is so critical and so complicated that we can’t leave it to companies to make it up as they go along and then declare a Mulligan when they screw up. The entire point of having enforceable rules and liability for mistakes to get people to act carefully and avoid making the mistakes in the first place. That’s why we have traffic rules and impose liability for rear ending someone – even when it’s an accident. Sure, you have plenty of independent incentive to avoid rear ending someone. But having rules to establish how traffic is actually supposed to work helps people avoid accidents in the first place, and making people responsible for rear ending folks whether or not they did it on purpose makes them respect those rules and act with caution.

 

Similarly, it’s a nice question whether Verizon’s conduct in this case actually violated the pre-repeal net neutrality rules. Yes, you can sell limited plans, including plans that are called “unlimited” but throttle speeds once you exceed a particular cap. But there are a number of factors here that raise the questions whether Verizon failed to accurately describe the limitations on the plan in accordance with the pre-repeal enhanced disclosure rule (keep in mind that AT&T was fined by both the FCC and FTC for throttling unlimited plans down to uselessness back in 2014 under the old disclosure rules.). It is also unclear whether it was reasonable for VZ to throttle in light of the previous throttling incidents in December 2017 and June 29, 2018, and subsequent promise by Verizon (at least according to the fire department email chain) to suspend the bandwidth cap during emergencies. Former FCC Chair Tom Wheeler argues that this would potentially have been a violation of the general conduct rule, which was devised as a generic ‘catch all’ for unreasonable or discriminatory behavior. Verizon, for its part, would have numerous defenses it could raise, including the question as to whether this counted as BIAS or enterprise service, whether they had properly communicated the limitations of the plan and it was the Santa Clara Fire Department’s error, and whether they had otherwise behaved reasonably in light of the circumstances.

 

Whether or not Verizon would ultimately have been acquitted in a complaint is, in my opinion, almost irrelevant to the conversation we need to have now. No one can deny that prior to the December 2017 net neutrality repeal order broadband access service was a Title II service and we had rules in place under 47 C.F.R. Part 8 which created certain rights and procedures for broadband subscribers. It is the existence of a legal and procedural framework, and authority to take steps to prevent similar incidents in the future, that are critical here and are what would be immediately restored if Congress were to pass the CRA.

 

How This Would Have Gone Down Under The Old Rules – The Key Point Is Process.

 

One of the points I make over and over and over again in the never ending net neutrality debate is that a huge part of the value of having enforceable rules (and overall FCC authority) is that it provides a mechanism for resolving disputes. Whether or not something is finally adjudicated as a violation, having rules and a process allows people to have some confidence in the management of their Internet subscription service and how they are treated. Ideally, when disputes arise, they should be resolved by the processes available without the need for adjudication in the same way that most lawsuits settle because the rules for litigation provide a framework for resolving disputes the parties can’t solve on their own. This is one of the reason’s Pai completely eliminating an FCC role in the process is such as radical (and destructive) break with past practice.

 

Under the 2015 Rules, the Santa Clara Fire Department (SCFD) would have had recourse after the first time they were throttled (according to the email chain published in Ars, there was an initial throttling problem in December which SCFD thought they had resolved, and then a new problem on June 29, so pick either of those dates as the decision point). SCFD could either have contacted the FCC net neutrality ombudsman and filed an informal complaint, or filed a formal complaint. In the case of the former, the FCC ombudsman would have acted quickly to make sure this got resolved ASAP due to the threat to public safety by both elevating this within the FCC (probably to the Chairman’s Office, but at least to the Chief of the Public Safety Bureau) and elevating this within Verizon by going directly to their legal/gov affairs people. This would have entirely leapfrogged the whole customer service miscommunication/mistake. Taking Verizon at their word from their statement, once this routed around the customer service/account representative level (who, let’s face it, was probably not authorized to unilaterally suspend the bandwidth cap) they would have acted immediately to correct the situation without requiring SCFD to buy a new, more expensive plan a month later when the Mendocino Complex Fire throttling occurred.

 

If SCFD had filed a formal complaint, same result. The first stage of a formal complaint is to file with the FCC and send a letter to the ISP (here, VZ) stating the intent to initiate a complaint at the FCC and triggering an automatic negotiation period for the parties to resolve the dispute. Again, this would have promptly circumvented the customer service level and resolved the problem well before July 29, when VZ again throttled SCFD command and control center at the outbreak of the Mendocino Complex Fire.

 

Again, whether or not the FCC would have ultimately found that Verizon was within its rights to throttle SCFD on July 29 based on SCFD’s choice of service contract is almost irrelevant. We almost certainly would never have even reached that point because SCFD, the FCC and Verizon would have resolved things after either the December throttling or the June 29 throttling. Even if the FCC agreed with Verizon that it was SCFD’s responsibility to choose an appropriate plan, SCFD would have known this with certainty and would have had the more expensive plan in place before the Mendocino Complex Fire.

 

So, once again, to sound like a broken record, it’s not just about whether Verizon behaved appropriately or not. It’s about having clear rules and procedures in place so that when an emergency like this happens, people know what to do and can resolve the problem quickly. Yes, mistakes will always happen, whether or not we have rules. But rules and procedures help us resolve those mistakes – especially in times of emergency when you need to know what to do right away.

 

To employ an analogy which hopefully even the Cloud-Cuckooland Economists beloved by Chairman Pai will understand – consider our traffic rules for driving around in parking lots. The vast majority of the time, things go smoothly. After all, no one wants to hit someone else. But they go smoothly in no small part because we have lots of rules telling people who has right of way and where they can park and designating specific parking places for people with handicap tags and so forth. Because we all learn the basic rules of how to navigate parking lots in advance, we don’t spend our time trying to work out who has right of way and whether you have to yield to someone making a turn or not. When accidents do occur, we have a set of procedures that tells us how to behave to resolve them. We make the driver who didn’t follow the rules – even if it was an accident – liable so that people will be more careful. We have insurance and clear rules of liability to make it unnecessary in most cases of an accident to go to court.

 

We no longer have that for broadband. Anytime something comes up, it is up to the parties to figure it out on their own – including by throwing a giant hissy fit in the press. That is what the whole “companies will have incentive to avoid bad publicity” means. It means that when something like this happens, the only rational thing to do is to hammer the company as a bunch of irresponsible villains because that is the only way to get them to alter their behavior. According to Pai and the Repeal Order, this whole ‘trial in the press’ is better than all those silly rules and procedures which gave everyone certainty.

 

Which brings me to the next and equally important point. How do we keep this from happening again?

 

Verizon’s Announced Policy Changes Do Not Solve The Underlying Problems.

 

Verizon has announced future changes in policy for public safety, and an immediate suspension of data caps for public safety clients on the west coast to deal with wildfires and in Hawaii to deal with the damage from Hurricane Lane. This does not “solve” anything. Yes, Verizon deserves credit for properly eating crow and accepting responsibility from the start, rather than trying to bluff it out. But the issue here is not Verizon as a company. I have absolutely no doubt that the folks who are actually authorized to set policy at Verizon are horrified that this happened. That’s not the point. It should not be up to Verizon to decide what is adequate to keep incidents like this from happening again – whether in California or anywhere else. As then-FCC Chairman quite rightly answered when asked why the FCC needed to reclassify broadband as Title II and impose network neutrality, “[the Internet] is simply too important to be left without rules, and without a referee on the field.”

 

The idea that Verizon’s recent actions, however welcome, “solve” the problem is simply wrong on a number of levels. Setting aside my point above that we could have resolved this by the latest after June 29 under the 2015 rules and therefore we would not have had the throttling (with accompanying loss of property from the interruption in command and control), Verizon’s announcement doesn’t solve anything. For one thing, we don’t even know what Verizon’s new policy will be, and whether it adequately addresses concerns about throttling public safety users (or the public with whom they are trying to communicate) during emergencies. Even assuming it is a good policy, how it gets implemented and enforced is totally up to Verizon. That’s the problem in relying on corporate beneficence or supposed incentives instead of enforceable rights.

 

But even if we got past all that, it would not apply to any other carrier. As I keep repeating, this isn’t about whether Verizon is a good company or a bad company. It’s about whether we need public oversight, accountability and enforceable rules to ensure that critical infrastructure does not fail us when we need it most. That’s why Congress created the FCC in the first place, as explained by Congress in Section 1 of the Communications Act (as I said above the fold). It would be just as disastrous if it were AT&T, or any other carrier, throttling public safety during an emergency. Nothing about Verizon’s response does anything to prevent a different carrier from making some other unfortunate mistake.

 

This is also the problem with arguing that “if there was a violation, the FTC can punish Verizon.” The point isn’t to punish Verizon for the sake of punishing Verizon. The point is to have rules that protect the public so that public safety providers (and ordinary subscribers) don’t lose critical communications in emergencies. Setting aside the FTC uses different standards when determining whether a company used “unfair or deceptive acts or practices” (“UDAP” for those wondering what acronym folks in the biz toss around), the FTC enforcement action only acts against the company in question. Yes, it sets precedent. But the FTC would need to go through the same lengthy process in the event another carrier did the same thing.

 

This is one of the critical differences between rulemaking and enforcement actions on general principles. Rulemakings can be tailored to address specific conduct that raises concerns and require that companies have procedures in place before the problem happens. To belabor the same point one more time, rules set expectations and force companies (and the public) to behave in particular ways so that those trying to avoid trouble know how to do so and so that people know how to resolve problems once a dispute comes up. The FTC, limited to enforcement actions of the general UDAP standard, can’t do that. As a result, the way things work in FTC land is that businesses do what they want until they discover after the fact that they crossed a line.

 

That’s not always ad, especially when your jurisdiction is as broad and covers as many different businesses as the FTC’s does. But when we are talking about critical infrastructure, this set up absolutely guarantees we will have situations like the firefighter throttling come up time and again at the worst possible times. Because the only way companies know when they have crossed the line is by crossing it. For critical infrastructure, that discovery can cost lives.

 

How This Would Work Out If Broadband Were Still Title II.

 

Let’s pretend once again we are back in the world prior to December 2017. The FCC still classifies broadband as a Title II telecommunications service. However the dispute between Verizon and SCFD would have gone, the FCC would almost certainly have conducted some sort of general follow up inquiry or rulemaking, just as the FCC has done following 911 failures and natural disaster responses. (Well, almost certainly. As Commissioner Rosenworcel has pointed out, the current FCC Chairman has not done much to examine why it took so long to restore service in Puerto Rico and how the FCC could make sure that providers are better prepared going forward.)

 

Under the FCC’s general Title II rulemaking authority, the FCC would be able to conduct a general inquiry to examine what sort of communications public safety providers have available during emergencies and whether the FCC needs to take action to prevent public safety providers who rely on third parties for communications don’t lose connectivity at critical times. This doesn’t mean punishing Verizon – especially if the Commission finds that Verizon did not violate any rules (as I noted above, Verizon has defenses it could raise if a complaint were filed). Again, this is an all too common misunderstanding about rules and the purpose of rules. FCC Rules Are Not Just About Punishing Bad People.

 

This is precisely why Congress created a specific oversight agency for communications. When it comes to critical infrastructure, we need rules. Too much depends on making sure things work – particularly in times of emergency. When an incident shows that we may have a systemic problem that, if unaddressed, may cause communications to fail in an emergency, then the agency needs to evaluate how to address the problem. Often, as here, the solution may require balancing multiple factors with different sets of costs and benefits. Should we prohibit carriers from selling capped plans to public safety entities? That would drive up the cost to public safety entities, especially for secondary services that don’t necessarily need unlimited data. But we might decide it is the best way to avoid communications loss at critical times. Should there be standards and best practices, or rules? Should we require carriers to lift bandwidth limits in emergencies for everyone? How would that be implemented? Or should we conclude that as long as carriers are clear about the terms then we want people to have the freedom to select their own plan?

 

I point out this is what we have routinely done for the 911 system over the years. We used to rely on best practices. Then we started having “sunny day 911 outages.” It turned out these outages were in part caused because the changing technology associated with 911 created gaps in responsibility for ensuring the system worked smoothly. So the FCC set up a governance system to make sure that someone would have responsibility for each link in the increasingly complicated chain of 911 management. It wasn’t about punishing greedy companies, but about fixing a real problem in our emergency critical infrastructure.

 

Classifying broadband as Title II is the same idea. We don’t do it simply because we lack competition in the broadband market. We do it because broadband is so important to the functioning of our modern life. Yes, that means regulating broadband as a utility, because broadband is a utility – meaning a service so essential that government has a responsibility to ensure everyone has affordable access to it.

 

CONCLUSION

 

Every FCC Chair before Ajit Pai, whether they supported Title II classification or not, recognized that the FCC needed to retain oversight of broadband for precisely this reason. Michael Powell did not hesitate to go after providers who blocked VOIP, or to use the FCC’s “bully pulpit” to announce the original net neutrality “4 freedoms.” Kevin Martin used a variety of theories of FCC authority to impose a host of consumer protection rules on “IP enabled services,” despite reclassifying every remaining wireline and wireless service as Title I “information service.” Julius Genachowski, for all he refused to classify broadband as Title II in 2010, still asserted FCC authority over broadband for purposes of universal service and blackout reporting rules. Tom Wheeler only reclassified broadband as Title II when the courts made it clear that he could either embrace Title II or walk away from the responsibility Congress gave the FCC to manage our communications infrastructure “for the purpose of the national defense, [and] for the purpose of promoting safety of life and property through the use of wire and radio communications.”

 

 

Chairman Ajit Pai is the first FCC Chairman to knowingly and willingly walk away from that responsibility. And we now get a taste of the result to come. Because it’s not just about what policies best serve the market or promote innovation, and where guessing wrong simply costs money. Chairman Pai’s refusal to do the job Congress gave the FCC puts property and lives at risk, and will continue to do so until Congress passes the CRA or states such as California take matters into their own hands by passing comprehensive net neutrality laws.

 

 

Stay tuned . . .

 

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