Santa Clara County and its fire district are upset with slow speeds the fire district experienced after exceeding the monthly data allowance for a service plan with Verizon. The county is trying to make hay over the matter by wrongly trying to tie it to "net neutrality."
In truth, the matter between the fire district and Verizon has to do with usage-based plans that benefit cost-conscious customers who only want to pay for the data they use. Even the now-repealed 2015 net neutrality rules adopted by the Obama Administration FCC permitted these types of plans.
Charging consumers based on the volume of a service they use is a common practice across businesses and industries in our economy. Broadband Internet service providers routinely offer customers usage-based pricing options. Usage-based plans may, for example, include monthly allowances of high-speed data, whereby a customer pays for 25GB or 100GB of data. Although such plans sometimes are subsumed under the term "data caps," this is somewhat of a misnomer. They don't halt connectivity when allowances are exceeded. Rather, customers may experience reduced speeds or incur additional charges when they use more than their data allowances. Usage-based plans often allow lower-volume customers to keep their costs down.
The Santa Clara County Central Fire Protection District depends on a high-speed connection in providing fire and other emergency services. Near the end of July, the fire district experienced slow connection speeds and contacted its provider, Verizon. Verizon has a policy of making an exception to its allowances or so-called "data caps" in emergency situations. Unfortunately, the customer service personnel involved did not execute the request for an exception when contacted by the fire district. After some delay that effectively prevented data-intensive communications for a time, the fire district upgraded its service plan and again received high-speed connectivity. Verizon has apologized for its error.
From the standpoint of an emergency services provider and customer, the fire district's frustration may be understandable. But the misplaced attempt to inject "net neutrality" into the mix may have its own explanation. Santa Clara County is a party to the pending lawsuit challenging the 2017 Restoring Internet Freedom Order that repealed the Obama-Wheeler FCC's Title II public utility regulation of broadband Internet access services. Pro-regulatory advocates have therefore tried to make the fire district's data allowance episode into net neutrality theater. They have even mentioned the matter in a legal brief challenging the Restoring Internet Freedom Order. But this is wrong.
Santa Clara County's issue with Verizon involves a customer paying for the amount of service they want to use and a service provider's regrettable, but mistaken, lack of accommodation in a particular circumstance. It's about usage-based plans and customer service. It's not about net neutrality because Verizon's service plan for a monthly allowance of high-speed data with reduced speeds for extra usage would not have been prohibited under the FCC's old net neutrality rules.
Usage-based pricing with data allowances was affirmed under the now-repealed 2015 Obama FCC Title II Order. According to paragraph 122: "Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it does not address a practice of slowing down an end user's connection to the Internet based on a choice made by the end user. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier."
Buried in footnote 13 of the legal brief challenging the 2017 Restoring Internet Freedom Order, Santa Clara County and other pro-regulatory advocates admit they are not attempting to argue that Verizon's usage-based pricing plan with the fire district would have violated the 2015 Title II Order. This makes the net neutrality theater act pretty obvious.
Importantly, the 2017 Restoring Internet Freedom Order also recognizes the upshot to usage-based pricing plans. According to paragraph 153: "Usage allowances may benefit consumers by offering them more choices over a greater range of service options, and, for mobile broadband networks, such plans are the industry norm today, in part reflecting the different capacity issues on mobile networks."
Equally important, the Restoring Internet Freedom Order provides protections for aggrieved customers. All major broadband service providers promise not to block or throttle access to Internet content of their customers' choosing, or to prioritize Internet traffic in ways that are anticompetitive. Broadband service providers that fail to follow their own terms of service are subject to enforcement actions by the Federal Trade Commission under its authority to prohibit unfair and deceptive trade practices.
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