On Monday, April 8, FCC Chairwoman Jessica Rosenworcel is set to join the Santa Clara County Fire Chief in California for a media event to discuss the Commission's proposal to transform broadband Internet networks into public utilities. According to a media advisory, Chairwoman Rosenworcel "chose to travel to the Bay Area to highlight an incident involving the Santa Clara County Fire Department where their internet access was throttled in the midst of their public safety response to the largest fire on record in California history."
One of the major flaws of the Biden FCC's proposed Internet regulation plan is that there is no existing problem that would justify such heavy-handed government controls. All or nearly all broadband providers in the nation pledge, in legally enforceable terms of service, to not block or throttle their subscribers' Internet access. There is a lack of real-world examples of broadband providers engaged in discriminatory blocking or throttling. The July 2018 "wildfire incident" provides no such example and its occurrence certainly doesn't justify Title II reclassification of broadband services.
I wrote about the July 2018 "wildfire incident" back in an August 2018 FSF Blog post, "Attempt to Turn Usage-Based Pricing into Net Neutrality Issue Is Non-Starter." To briefly recap, the Santa Clara County Central Fire Protection District signed up for a lower-tiered mass-market retail broadband Internet service plan with a monthly so-called "data cap" that resulted in slower speeds when the cap was exceeded. Near the end of July 2018, while a massive fire was blazing, the Fire District experienced exceeded its service plan's data allotment. Although the broadband service provider had a policy of making exceptions for emergencies, a customer service employee did not execute that request and the Fire District experience slowed service for some time thereafter. The broadband provider later apologized for the mistake and changed their policy to prevent that sort of result from happening again.
Although supporters of public utility regulation almost immediately made noise about the 2018 wildfire incident, there was no underlying net neutrality violation. Even if the 2015 Title II Order had remained in force in 2018, the usage-based pricing plan that the Santa Clara County Central Fire District subscribed to would have been permissible. As I explained in my August 2018 blog post:
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.
After an intermission, the theater act resumed last fall. Chairwoman Rosenworcel invoked the incident in her statement accompanying the FCC's September 2023 Notice of Proposed Rulemaking to reclassify broadband Internet access services under Title II. However, the Notice didn't mention it. (The Free State Foundation filed comments and reply comments in response to that Notice, recommending against Title II regulation.)
Now the Commission's April 2 draft order invokes the 2018 wildfire incident in seeming support for new agency rules. But the result is underwhelming. Paragraph 452 includes a brief summation of clashing views of public comments:
Commenters reach differing conclusions regarding the significance of the 2018 Mendocino Complex Fire. Commenters who support reclassification point to the wildfire incident as an example demonstrating the need for the open Internet rules and for the Commission to have greater authority to examine and investigate such incidents, and ultimately, to prevent future harms from occurring. Without such rules, these commenters warn, BIAS providers will engage in conduct that could result in harm to public safety, and that voluntary commitments are insufficient to ensure public safety. Commenters who oppose reclassification contend that the wildfire incident is irrelevant to, and an unpersuasive example used in support of, reclassification and the open Internet rules, because “the data plan at issue was marketed to government users, and therefore not covered by the FCC’s 2015 rules, nor by the definition of BIAS contained in the NPRM” and that Verizon’s actions would not have violated the 2015 Open Internet Order. In other words, they state that the type of data use plan that Verizon offered and that the Santa Clara fire department purchased did not violate the 2015 Open Internet Order. Opponents also argue that the Santa Clara fire department did not purchase a data plan that was appropriate for their needs.
The paragraph next offers the Commission’s brief take on the matter:
In our view the 2018 Mendocino Complex Wildfire incident demonstrates that given the high stakes at issue—the loss of life and property—reliance on the free market alone is insufficient in the area of public safety.
For all the fuss over the 2018 wildfire incident, at the end of the day the draft order never deems the incident to be a violation of net neutrality principles or the no-throttling rule. Instead, the incident is again being used in a misleading way to kick up dust in support of the proposed regulation.
Public safety is a primary function of government. But responsibility for public safety belongs primarily to agencies like the Department of Homeland Security – and not to the FCC. Congress never provided any clear statement of authority for the Commission to impose public utility regulation on broadband services for public safety purposes. The draft order faces a cliff because the Supreme Court's Major Questions Doctrine requires a clear statement of authority for the agency to undertake such a politically and economically significant action as imposing public utility regulation on broadband Internet access services. The Commission's attempt to rebrand Title II regulation as a public safety matter is an empty and likely doomed attempt to get around the agency's lack of authority problem.
Moreover, there is a huge mismatch between public safety and Title II regulation of commercial mass-market retail broadband Internet access services offered principally to residences and small businesses. Law enforcement agencies and emergency responders rely substantially on enterprise or dedicated networks, including FirstNet. The Title II legacy telephone regulatory framework was designed for rate-regulating common carrier services, and it has almost nothing to do with public safety. There is no reason to think that Title II reclassification of broadband will improve public safety outcomes.
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