On August 20, 2017, petitioners challenging the FCC’s abandonment of net neutrality protections in Mozilla v. FCC filed their initial briefs. Coverage of Mozilla’s joint brief with other non-government petitioners (including companies and public interest groups) is available here and here. This blog post focuses on the brief filed by government petitioners, which include 22 states (New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington), the District of Columbia, the County of Santa Clara, Santa Clara County Central Fire Protection District, and the California Public Utilities Commission. These states represent over 165 million people, approximately half of the United States population.
The brief of the government petitioners make two primary arguments: 1) that the 2017 Order is arbitrary and capricious and failed to take into account harm to consumers, including public safety issues; and 2) the FCC did not have valid authority to preempt state and local laws from enacting their own net neutrality protections.
The highlight of this government petitioners’ brief focuses on clear and real examples of the harms that absence of net neutrality protections will have on safety, health and the public interest. While the FCC’s 2017 reversal of net neutrality protections relies on voluntary commitments, Internet companies have demonstrated that they will prioritize their own interests over the public’s:
BIAS [Broadband Internet Access Service] providers have shown every indication that they will prioritize economic interests, even in situations that implicate public safety. For example, a BIAS provider recently throttled the connection of a County Fire emergency response vehicle involved in the response to the largest wildfire in California history and did not cease throttling even when informed that this practice threatened public safety (emphasis added).
In this case, while the County was fighting the Mendocino Complex Fire—the largest fire in California’s state history—it experienced throttling by its ISP, Verizon. The addendum to the government petitioners’ brief includes a declaration by Santa Clara County Fire Chief, Anthony Bowden, who notes that the fire department relies on “Internet-based systems to provide crucial and time-sensitive public safety services. The Internet has become an essential tool in providing fire and emergency response, particularly for events like large fires, which require the rapid deployment and organization of thousands of personnel and hundreds of fire engines, aircraft, and bulldozers. During these events, resources are marshaled from across the state and country—in some cases even from other countries” and management of these resources depends on the Internet.
As Bowden explains, the unit facilitating resources “typically exchanges 5-10 gigabytes of data per day via the Internet using a mobile router and wireless connection. Near real-time information exchange is vital to proper function . . . Even small delays in response translate into devastating effects, including loss of property, and, in some cases, loss of life.” As a result, high-speed Internet is critical in addressing these fires.
Despite the fact that Santa Clara County Fire believed it had purchased an “unlimited” data plan, Verizon throttled the County’s usage “and data rates had been reduced to 1/200, or less, than the previous speeds.” When employees of Santa Clara County Fire e-mailed with Verizon, requesting the throttling be lifted for public safety purposes:
Verizon representatives confirmed the throttling, but rather than restoring us to an essential data transfer speed, they indicated that County Fire would have to switch to a new data plan at more than twice the cost, and they would only remove throttling after we contacted the Department that handles billing and switched to the new data plan.
Indeed, in the e-mail exchange attached as an exhibit in the addendum, a reported “side by side comparison a crew members personal phone using Verizon was seeing speeds of 20MBps/7Mbps. The department Verizon device is experiencing speeds of 0.2Mbps/0.6MBps, meaning it has no meaningful functionality.”
In another e-mail exchange questioning why Verizon was throttling the Santa Clara County Fire when the County believed it had purchased unlimited data, a Verizon manager replied, “Verizon has always reserved the right to limit data throughput on unlimited plans. All unlimited data plans offered by Verizon have some sort of data throttling built-in.”
While Verizon’s response to the Santa Clara County Fire Department in the midst of fighting the largest fire in California history as an extreme example of an ISP acting in self-interest, there are other examples of concerns for other state and local government seeking to serve the health and safety needs of its residents. For example, the government petitioners’ brief points to California’s updates to manage its energy grid to balance load, manage congestion and satisfy reliability standards.
Another example cited by the County of Santa Clara is its “web-based emergency operations center to facilitate coordination internally with other agencies and with first responders in case of emergency.” It uses a web-based public alert system to notify the public about emergencies such as evacuation orders or disease outbreaks and “Significant delays from blocking, throttling, or deprioritization could impede effective notification and jeopardize safety in public-health emergencies.” The County’s hospital also uses web-based systems that are latency-sensitive, including development of expanded telemedicine capabilities which will allow doctors to “perform triage and improve outcomes in time-sensitive situations (such as strokes or vehicular accidents) where immediate diagnosis can mean the difference between life and death.” In developing these improved systems for public health and safety, the County of Santa Clara notes that it invested substantial resources, including over a million dollars in its medical records system, and did so in reliance on the FCC’s protection of an open Internet.
Ultimately, the government petitioners’ brief highlights the ways that state and local government rely on an open Internet to serve the public, health and safety needs of its residents. As the brief notes, the FCC erred in assuming
that providers’ voluntary commitments coupled with existing consumer protection laws provide sufficient protection. The Commission offered no meaningful defense of its decision to uncritically accept industry promises that are untethered to any enforcement mechanism. Nothing in the order would stop a BIAS provider from abandoning its voluntary commitments, revising its Transparency Rule disclosures, and beginning to block, throttle, or engage in paid prioritization, subject only to the Transparency Rule’s limited disclosure requirements—leading to the very harms to consumer interests and public safety that the Commission’s long-standing commitment to protecting the open Internet was intended to prevent.