Fire Dept. Rejects Verizon’s “Customer Support Mistake” Excuse For Throttling

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Above Photo: Getty Images | Justin Sullivan. A West Covina firefighter pulls a hose away from a horse barn that burns as the Mendocino Complex Fire moves through the area on July 31, 2018 in Lakeport, California.

County disputes Verizon claim that throttling “has nothing to do with net neutrality.”

A fire department whose data was throttled by Verizon Wireless while it was fighting California’s largest-ever wildfire has rejected Verizon’s claim that the throttling was just a customer service error and “has nothing to do with net neutrality.” The throttling “has everything to do with net neutrality,” a Santa Clara County official said.

Verizon yesterday acknowledged that it shouldn’t have continued throttling Santa Clara County Fire Department’s “unlimited” data service while the department was battling the Mendocino Complex Fire. Verizon said the department had chosen an unlimited data plan that gets throttled to speeds of 200kbps or 600kbps after using 25GB a month but that Verizon failed to follow its policy of “remov[ing] data speed restrictions when contacted in emergency situations.”

“This was a customer support mistake” and not a net neutrality issue, Verizon said.

“Everything to do with net neutrality”

Santa Clara County disputed Verizon’s characterization of the problem in a press release last night. “Verizon’s throttling has everything to do with net neutrality—it shows that the ISPs will act in their economic interests, even at the expense of public safety,” County Counsel James Williams said on behalf of the county and fire department. “That is exactly what the Trump Administration’s repeal of net neutrality allows and encourages.”

Santa Clara County and the Santa Clara County Central Fire Protection District are among two dozen local or state government agencies that sued the Federal Communications Commission in a bid to overturn the repeal of net neutrality rules that outlawed throttling and blocking. Verizon’s throttling of the Santa Clara fire department was described in detail in court documents filed as evidence in the case.

“In repealing net neutrality rules, the Trump Administration failed to consider public safety threats as required by law,” Williams said. “For this reason alone, the repeal of net neutrality is illegal and must be overturned.”

Verizon doesn’t think its throttling of the fire department’s unlimited plan should be part of the lawsuit that seeks to restore net neutrality.

“This situation has nothing to do with net neutrality or the current proceeding in court,” Verizon said.

The throttling affected a device on a fire department vehicle that is “deployed to large incidents as a command and control resource” and is used to “track, organize, and prioritize routing of resources from around the state and country to the sites where they are most needed,” Fire Chief Anthony Bowden wrote in a court declaration. Internet access is crucial “for events like large fires which require the rapid deployment and organization of thousands of personnel and hundreds of fire engines, aircraft, and bulldozers,” he wrote.

Throttling could also affect how quickly the department issues warnings to the public, Santa Clara Capt. Bill Murphy told Fox 29. “We’re sending time-sensitive critical information, ‘evacuate this area now,'” Murphy said. “If the public can’t receive those notices in a timely fashion, that certainly could impact their ability to [quickly] get out of an area that we’ve determined is dangerous.”

To lift the throttling, Verizon told the fire department to upgrade from a $37.99 plan to one that costs $99.99 for the first 20GB and $8 per gigabyte thereafter.

“While Verizon ultimately did lift the throttling, it was only after County Fire subscribed to a new, more expensive plan,” Bowden wrote.

Net neutrality rules and throttling

Whether Verizon could have been punished for the throttling under the now-repealed net neutrality rules is debatable. The rules banned throttling but had an exception for “reasonable network management.”

All major carriers reserve the right to throttle unlimited data plans after customers use a certain amount each month. But the throttling generally only applies when a customer has exceeded the threshold and tries to use data in an area where the network is congested. By contrast, the fire department’s plan was apparently throttled at all times regardless of whether the network was congested. If there had been a formal FCC proceeding, that might have made it difficult for Verizon to argue that the throttling was necessary to manage its network.

The FCC never ruled on whether throttling in this type of scenario violated net neutrality rules. But it’s conceivable that an aggressive FCC chair could have tried to stop it.

In 2014, then-FCC Chairman Tom Wheeler told Verizon that he was “deeply troubled” by Verizon’s plan to throttle 4G users with unlimited data plans. Wheeler told Verizon that “‘reasonable network management’ concerns the technical management of your network; it is not a loophole designed to enhance your revenue streams.”

Wheeler rejected the “reasonable network management” explanation in that instance even though Verizon said it would only throttle its heaviest data users when they connect to congested cell sites. Verizon caved to Wheeler in October 2014, halting the plan to throttle LTE users on grandfathered unlimited data plans. Verizon also stopped throttling 3G network users in 2015, shortly after Wheeler’s net neutrality rules were implemented.

The ban on throttling wasn’t the only aspect of net neutrality rules that could have gotten Verizon into trouble. The rules allowed Internet users to file complaints with the FCC about any unjust or unreasonable rates and practices, which could stop anti-consumer behavior that wasn’t specifically prohibited. Current FCC Chairman Ajit Pai’s decision to deregulate the broadband industry eliminated that complaint option this year and also limited consumers’ rights to sue Internet providers over unjust or unreasonable behavior.

Verizon had stopped selling unlimited data to new customers in 2011 but re-introduced unlimited data plans with potential throttling in February 2017, shortly after Wheeler was replaced as FCC chairman by Pai.

Separately, the Federal Trade Commission since 2014 has been trying to get refunds for AT&T customers who were throttled despite paying for unlimited data.