In late July, firefighters in Santa Clara County, California were stretched to the breaking point as they took on raging wildfires in the Mendocino hills, which were spreading fast, nearly 30,000 acres within hours at one point. It was the largest fire on record in state history. Firefighters were overwhelmed with laying down containment lines in steep inaccessible areas when they were suddenly presented with a new challenge–the loss of communications.
Verizon virtually cut off the internet connection to a vital command and control vehicle used to receive calls for help and to coordinate firefighters and equipment. The company had throttled down the broadband connection to that vehicle (known as “OES 5262”) to 1/200th of its normal speed. One fireman said the service became basically unusable, cutting off firefighters from vital emergency communications.
Why? Because the fire department had maxed out its monthly data allotment during the emergency. “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,” said Santa Clara County Fire Chief Anthony Bowden in a court filing, “and they would only remove throttling after we contacted the department that handles billing and switched to the new data plan.” It took four weeks to resolve the matter, and Verizon’s only solution was to up-sell the fire department to a more expensive data plan.”
“This situation has nothing to do with net neutrality . . .” Verizon said in a statement. “We made a mistake in how we communicated with our customer about the terms of its plan.” But Verizon had been shamed, and later announced it would lift the data caps on all California emergency response vehicles.
The bill that wouldn’t die
Meanwhile, 115 miles to the southwest in Sacramento, state senator Scott Weiner and other Democrats were fighting another kind of firestorm–a massive lobbying offensive by Big ISPs (internet service providers) to stop the advance of Weiner’s network neutrality bill, SB-822. The bill assures that the big ISPs (like Verizon, AT&T, Comcast) that connect users to the internet deliver all content at the same speed, regardless of the substance or origin of the data packets. The bill would prohibit Big ISPs from selling higher delivery speeds to big internet companies that can afford it (to the great disadvantage of smaller internet businesses), and from giving their own services an advantage by “zero-rating” (not charging for) the data used to deliver them.
At one point in June, when SB-822 had come up for a crucial committee vote, some California lawmakers buckled under heavy pressure from AT&T and Comcast lobbyists and removed some of the bill’s key protections at the 11th hour. During the hearing, a frustrated Weiner threatened to abandon the watered-down version of the bill altogether. But the public took notice, and waves of outrage flowed to Sacramento from around the state, blasting the lawmakers for selling out to Big ISP. This had the effect of refocusing the efforts of certain lawmakers to the job of passing an effective bill. Weiner and his Democratic colleagues went back to work on SB-822, restoring its key points. And then Verizon cut off the communications of the Santa Clara firefighters, making headlines across the country.
“That incident certainly provided us with some momentum on the legislation,” Weiner told me during an interview Tuesday. “There was a dispute about whether or not the incident was a net neutrality violation. Some experts said it was, others said it wasn’t. But regardless of that it really highlighted the reality that network neutrality is a public safety concern.”
By summer’s end, SB-822 had risen from the ashes. It passed both chambers of the California legislature August 31 and headed for the desk of Governor Jerry Brown. Brown had been silent on the matter for some time, so his signature was far from assured. A month after the bill passed the legislature, Brown finally signed it into law last Sunday. It was a massive victory of network neutrality proponents over the well-monied ISP lobby, but the celebration didn’t last long.
As expected, the Trump administration responded (as it had before on the California immigration law) with a lawsuit. The Department of Justice, acting on behalf of the FCC, immediately filed an injunction on Sunday to stop SB-822 from taking effect January 1, 2019.
“Within minutes of Governor Brown signing our net neutrality bill into law, Jeff Sessions came out of his cave and sued California to strike down the law,” Weiner said in a statement. A few days later, four large broadband industry lobby groups signed on to the DOJ’s injunction, including USTelecom (telcos), the CTIA (mobile broadband carriers), the NCTA (large cable companies), and the American Cable Association (small and mid-size cable companies). As Ars Technica‘s Jon Brodkin puts it, “the entire broadband industry” is lining up to stop California’s net neutrality law.
No one is allowed
The California law was prompted by a controversial move late last year by the Trump-appointed chairman of the FCC, former Verizon lawyer Ajit Pai, who rammed through an order that killed off federal network neutrality protections outlined in the 2015 Open Internet Order. Indeed, Pai’s “Restoring Internet Freedom” order, passed on a 3-2 party-line vote in December 2017, did more than erase federal net neutrality protections. It also reclassified broadband service from a Title II “telecommunication service” to a Title I “information service” under the definitions provided by the Telecommunication Act, which effectively put broadband providers outside the jurisdiction of the commission. That left only the Federal Trade Commission to punish network neutrality breaches after the fact, and the FTC has no special expertise in regulating telecommunication services as the FCC does.
Pai’s order went still further. It also contains a clause saying that states can’t pass their own laws regulating the ISPs, filling the regulatory vacuum left by the FCC.
“Sessions and his boss Donald Trump aren’t satisfied with the federal government repealing net neutrality,” Weiner said in his Sunday statement. “In their world, no one is allowed to protect an open internet.”
Pai had his own reasons for making sure that the FCC order preempted any state action. His order was politically unpopular, with polls showing that a strong majority of Americans wanted laws preventing ISPs from hindering some internet traffic and helping others. (And there’s evidence that Pai and other Republican FCC staffers may have interfered with the agency’s public comments system to obscure the extent of the public’s support for net neutrality.)
When the federal government passes unpopular legislation there’s a good chance that states will step in and write their own laws that better reflect the will of voters, Electronic Frontier Foundation attorney Ernesto Falcon explained to me. Comcast and Verizon’s lawyers knew that, and that’s why both asked the FCC–in last minute ex parte filings to the commission in November 2017–to add language to Pai’s order preempting the states from passing their own laws protecting the neutral internet. The FCC agreed to add the preemption, even though it had not asked for public comment on the clause as it is required to do by law. The commission appears to have been actively working with Big ISPs on the legal language needed to kill network neutrality rules for good. This all could come back to bite Pai and the FCC in court. More on that below.
This all puts the FCC in an odd position now. On the one hand the commission has taken away its own power to regulate broadband providers, and on the other it insists it still has the power to prevent the states from doing so. “It certainly does look like the commission is talking out of both sides of its mouth,” former FCC chairman Tom Wheeler told me.
The DOJ will have to reconcile the two sides of this paradox in court. And this problem had an effect on the agency’s legal strategy to kill off the California law in court. In its injunction, the DOJ doesn’t focus directly on disputing California’s right to make net neutrality law. Rather, its main tactic seems to be delaying the law from taking effect by moving the matter to a federal circuit court in the District of Columbia. The D.C. circuit court, as it happens, is already hearing another case in which Mozilla and some other tech companies are challenging the FCC’s power to preempt states from passing their own net neutrality laws. That case, Mozilla v. FCC, won’t be heard by the court until next February, with a decision expected by mid-next year.
If the D.C. circuit court decides that FCC indeed has the power to preempt the states, that may mean the end for the California law, the EFF’s Falcon told me. If the court decides that the FCC lacks the power to preempt (and the way the preemption clause was added to the order may push the court in this direction), the case moves on to a new question: Can the states show that their reasons for regulating broadband service providers are compelling enough to outweigh the burden imposed on the Big ISPs to comply with numerous state laws? And the burden may be significant; ISPs like Comcast operate nationwide networks, so complying with a patchwork of state laws could be costly. The DOJ attorneys will argue that broadband service is a classic example of “interstate commerce,” which the Constitution says should be regulated by the federal government.
Broadband and public safety
In order to overcome that argument, the California Attorney General will have to make a strong case that California has a vital interest in regulating ISPs doing business in the state. The California AG may point out that the state already enjoys the power to dole out franchise rights to telecom or cable companies that want to install new broadband infrastructure in California cities and towns. The state already overseas programs for providing broadband service to poor and underserved populations in the state. But the state’s strongest argument may be that it must have the power to regulate broadband providers in order to maintain public safety.
And that’s where the firefighters come in. When Verizon throttled down the broadband connection to those emergency vehicles, there was no authority to complain to–no local, state, or federal agency with the authority to demand that Verizon restore the service immediately. Had the Santa Clara county fire chief appealed to the FCC, it wouldn’t have made a difference, because the FCC abandoned its authority to regulate broadband providers like Verizon with its Restoring Internet Freedom order. This is remarkable because assuring the availability of communications systems in times of emergency is one of the FCC’s key mandates. The fire chief couldn’t have complained to the state of California because the state had no network neutrality law of its own on the books–and still won’t on January 1, 2019 because of the DOJ’s injunction. If the court is receptive to that powerful line of argument, the California law could survive and eventually go into effect. And Verizon’s July 29 throttle-down of emergency vehicle OES 5262 will have played a big role.
Pressure on Congress
California’s new law may put pressure on lawmakers in D.C. to reinstate the Obama-era net neutrality protections that the FCC rolled back. There’s precedent for this. The Congress in 2017 struck down Obama-era FCC rules preventing Big ISPs from harvesting and using customers’ personal browsing data without consent. The ISP lobby had complained (probably rightly) that they were being subjected to rules that didn’t apply to big internet companies like Google and Facebook.
The ISPs got their way, and the privacy rules were repealed. But the repeal wasn’t popular with the public, and many states immediately began working their own broadband privacy bills to fill the regulatory vacuum. California was one of them, and it eventually passed a remarkably strong privacy law in June. This, sources tell me, didn’t go unnoticed in Washington, D.C., and it has put pressure on Congress to pass a new federal privacy bill. And California passed its privacy law just as the public and members of Congress have grown more aware and less patient with the personal data harvesting practices of companies like Google and Facebook.
The same kind of pressure on Congress could result from California’s net neutrality law, if it survives in court.
In fact, whenever the fight over net neutrality heats up, voices cry out that the Congress will eventually have to settle the matter by writing new federal law. The same voices were heard at the signing of California network neutrality bill. “This state law is unlikely to survive judicial review,” proclaimed Brent Skorup at George Mason University’s Mercatus Center. “The internet and internet services are clearly interstate communications and federal law dominates.” Some point out it should be elected officials (members of Congress), not appointed ones (FCC commissioners) who should make the law. This might result in a set of rules that better reflects what voters want and which isn’t subject to the partisan winds that blow in and out of the agency every time a new administration comes to town.
The future’s unwritten
Even the Big ISPs have been heard saying they’d welcome a federal network neutrality law. “. . . we repeatedly have encouraged the U.S. Congress to end the back and forth and confusion surrounding open internet protections once and for all by writing a uniform, national law that protects all American consumers, innovation and investment by treating all internet platforms equally,” said Joan Marsh, AT&T EVP of Regulatory & State External Affairs, in a statement. “Simply put, state-by-state regulation in this area is insufficient and unworkable because the internet is a global network of networks that enables consumers to access and use information, content and services without regard to state, and even national, boundaries.”
Be careful what you wish for, says Obama-era FCC chairman Tom Wheeler.
“I love the Oscar Wilde saying: There are only two tragedies in life: One is not getting what one wants, and the other is getting it,” says Wheeler, under whose chairmanship the FCC passed the 2015 net neutrality rules and the 2017 broadband privacy rules. “The ISPs have had such complete and total victories in the Trump FCC, first with the repeal of the privacy rules and then with the repeal of the net neutrality rules. Congratulations. You’ve won. But now you’re in a situation where you have to choose between what you allege are the incompatible state regulations and the Congress enacting something you don’t like.”
Wheeler says the Big ISPs might have left well enough alone when the new administration came to power in January 2017. “I think there was about a snowball’s chance in hell that the Trump FCC would ever have enforced the net neutrality rules in the 2015 order, but that wasn’t enough. They had to put a stake in its heart.”
“But that woke up a lot of people, and they will have to answer to that,” Wheeler says, “whether it be in the courts, in the Congress, or in other states.”
Indeed, four states–Washington, Oregon, Vermont, and now California–have already passed their own network neutrality laws, and another 30 states have net neutrality laws in the works. Others will likely follow in 2019 with bills modeled after Weiner’s SB-822.
Or, with champions like Tennessee Republican Marsha Blackburn in the House, the big broadband providers might get something they love from Congress. And that is Weiner’s nightmare.
“One of the worst results would be passing a fake net neutrality law and then declaring victory, and then trying to preempt the states,” Weiner told me. That might mean Game Over for net neutrality. Weiner has already seen one fake net neutrality bill this year–his own SB-822 when it got (temporarily) neutered in Sacramento last June. Something very similar could easily happen in Washington. When the Big ISPs like AT&T and Comcast say they’d welcome a federal network neutrality law, that’s what they’re probably hoping for–federal law that allows them to sell internet fast lanes and zero-rate their own services like on-demand video or streaming music.
“We have to be mindful of that fact and make sure that if the Congress does act they pass meaningful legislation,” Weiner says. But he also told me he doesn’t see Congress acting anytime soon. Democrats currently favor strong network neutrality rules but lack the numbers needed to push a bill. “Even if the Democrats manage to turn the House in the midterms they’re still not going to have the 60 votes [they’d need to pass a bill] in the Senate,” Weiner says.
The only thing that seems certain in the fight over the neutrality of the internet is continued regulatory uncertainty. At least in the near term this alone may be enough to keep the big ISPs’ plans for fast lanes and zero-rating in check.
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