Santa Clara County supervisors say more needs to be done to ensure Verizon and other internet services providers never again restrict public safety agencies communications during emergencies. But it's an open question whether Verizon could be compelled to do anything about it.
Verizon officials continued what amounts to an apology tour earlier this week at the county's Oct. 31 Finance and Government Operations Committee meeting, admitting that the company's conduct during massive wildfires earlier this year was unacceptable. County officials revealed in August that Verizon had slowed the county fire department's wireless internet communications to a crawl during the Mendocino Complex fire, the largest combined wildfire in state history. The fires tore through 280,000 acres of Northern California in July.
Like most data plans, the Santa Clara County Fire Department had a contract with a data cap, meaning its internet speeds would be significantly throttled after a certain amount of data usage during a billing cycle. But there was supposed to be an exception: In the event of an emergency, the throttling was supposed to end, but Verizon's associate general counsel Jesus Roman told supervisors that the cap was never lifted.
"Though we had a process to make exceptions in exigent circumstances for first responders, that process failed," Roman said. "We are contrite in making every effort to ensure that this never happens again."
The Mendocino Complex fire wasn't the first time, either. Fire Chief Tony Bowden described how the department had been throttled multiple times going back to December 2017, and had a representative from Verizon on the phone each time trying to sort out the problem. In each instance, Verizon representatives said that the fire department might need to upgrade to a more expensive plan, including a limitless data plan that charged on a pay-per-use basis after bumping into the cap.
Considering the number of devices and amount of data usage required by the fire department, Bowden estimated the "unlimited" plan could end up costing the county $800 for each device, totaling close to $200,000 to $250,000 per month.
The throttling was so significant that download speeds reportedly dropped to 0.2 megabits per second, meaning it had "no meaningful functionality," according to an email to Bowden by fire Capt. Justin Stockman. Another crew member with a non-throttled Verizon phone, doing a side-by-side comparison, was getting 20 megabits per second. During the June 2018 response to the Pawnee Fire, Bowden said firefighters were "monitoring the billing cycle to figure out when connectivity would resume" and using "personal devices and phones to allow them to have connectivity back to the internet."
Despite getting assurances from Verizon at the time that the throttling would be lifted in times of emergency, the department's connection was once again halted to a near-stand still at the Mendocino fires.
County Supervisor Joe Simitian made clear that public safety was put at risk, and that Verizon should do more than just make it a "goal" to make sure it never happens again. Simitian said the Oct. 31 meeting was intentionally set well after the throttling problem was revealed, to allow time for Verizon to figure out a possible fix, but he made clear that the company is on notice for what happened.
"I think if this ever does happen again, all hell is going to break loose, and it should," Simitian said. "Everyone's on notice right now that both folks in the first responder world and the public generally (were) put at risk unnecessarily, and that can't be allowed to happen again."
Along with assurances that throttling will be lifted in future emergencies, Verizon's plan includes providing a special, unlimited access plan to emergency responders at all times. Public safety organizations are recognized among 14 so-called North American Industry Classification System (NAICS) codes, and four have been picked by Verizon as recipients of unlimited, unthrottled internet access, according to Dave Hickey, Verizon's vice president of business and government sales. The remaining 10 public safety "codes" would get unlimited access in emergency situations, but are otherwise stuck with the publicly available plans.
Supervisors questioned the logic behind picking and choosing public safety organizations that get to benefit from the unlimited plan, and what kind of emergency scenario would end throttling on the groups.
"We obviously have life-or-death situations without the declaration of emergency from the governor, and there are a lot of folks who keep people safe besides the four categories of first responders like firefighters, law enforcement and EMS," Simitian said. "So I'm concerned about whether or not the decision-making is going to be ad hoc for those ten codes."
Santa Clara County Supervisor Cindy Chavez said she was concerned that Verizon would rationalize, either from a financial or a network management perspective, that some public safety operations shouldn't move at full capacity at all times. She said these organizations can't wait 20 minutes for an emergency declaration when critical life or death situations come down to seconds.
"The idea to me that any public safety entity could ever be throttled at any time is just so unbelievable," Chavez said. "I can't even process it, because I can't imagine when we would tell people 'We didn't have an option but to throttle and find the right rep to upgrade the plan so that then we could finish our work.'"
The representatives for Verizon shied away from nuanced details of how internet traffic works, but Hickey said the company needs to be careful about how many of the 14 public safety codes are allowed unlimited access. He said the company looked "internally" and consulted with public safety experts and concluded that giving access to all 14 could clog up network capacity and slow down everyone's connection.
Verizon officials want to make sure that individuals on the front line, who need the highest data speeds available, have it available, Hickey said. "You live in this world where if everybody has unlimited, nobody has unlimited, and so we wanted to make sure that we were in a scenario where this group absolutely had the best possible service," he said.
The analogy used throughout the meeting to describe data throughput limitations was a busy highway, with various vehicles all trying to get on the road at the same time. The analogy broke down, however, as Chavez inquired about why the company throttled connections even during low-traffic times when the "highway" was completely open.
Ernesto Falcon, legislative counsel with the Electronic Frontier Foundation, told supervisors that Verizon was muddying the waters between billing practices -- charging over a certain amount of internet usage or throttling connections purely to boost the company's bottom line -- and technical engineering requirements to manage the network.
"The data caps and the throttling that follows after you exceed a certain amount or the overage fees -- they are not coupled with congestion at all," he said.
Bowden said that Santa Clara County's fire department still hasn't signed up for this new plan, noting that he had concerns Verizon may still end up quashing its connection. He said the plan won't throttle connections for "actively engaged and deployed" firefighters, police and emergency medical technicians, but its unclear what that actually means. He said the plan also states it can exclude "dedicated internet connections," particularly fixed internet routers, which would be a big problem for the department.
"Are our fixed internet routers, that are permanently affixed to our fire engines, considered a fixed stationary wireless networking device, and therefore excluded from the plan?" Bowden asked. "Because as I read it, it is a fixed device. It doesn't get pulled out, it never leaves that apparatus."
Bowden said he sought clarity in writing from Verizon on both of his concerns, but hasn't received a response a month after his request. Simitian asked Verizon representatives to make a commitment to respond to Bowden's concerns by Dec. 1, and said the company should meet that deadline.
"I'll just be very clear," Simitian said. "I'll be communicating this with folks at the legislative level, so I think you will be well served to take that step. This is not the end of this conversation today."
Concerns over Net Neutrality repeal
The context surrounding Verizon's throttling during public safety emergencies is a larger concern that the Federal Communications Commission (FCC) is not longer interested in monitoring companies suspected of wrongdoing.
At the Oct. 31 meeting, Falcon argued to supervisors that the 2015 Open Internet Order -- which included protections against throttling speeds based on the content or services, known generally as Net Neutrality -- put a nationwide ban on "unjust, unreasonable business practices." Under that law, Falcon said Verizon could have faced penalties for throttling of firefighters earlier this year, and that the FCC could have written up rules to prevent it from happening again.
That power was taken away in 2017, when the FCC issued its Restoring Internet Freedom order, which knocked out the agency's legal authority to police internet service providers over issues of competition, privacy and public safety, Falcon said.
The resulting dynamic is what played out at the Tuesday meeting -- county officials hoping that Verizon will take the public's interest to heart and make internal adjustments to its business practices to the benefit of residents. That's a far cry from when Verizon had a legal obligation not to engage in unjust or unfair business practices, Falcon said.
"The things that happened in Santa Clara -- the extent of the throttling that happened with the fire department, the upselling in the middle of an emergency, the four weeks of back and forth -- these are all things that a previous FCC would investigate and would have the power ... to enact some sort of penalties to punish the company," he said.
"When you are seeking assurances, there is nothing hanging in the backdrop right now as a legal power to compel such assurances."
Roman, responding to Falcon, argued that the Net Neutrality laws that were wiped out last year have nothing to do with the problem at hand, which is throttling a fire department that had knowingly agreed to plan that included slow speeds after hitting a certain amount of data use. The company could face penalties if it had knowingly hid that fact, though that was not suggested at any point during the meeting.
After the meeting, Falcon told the Voice that it was likely the intent of Verizon representatives to conflate Net Neutrality rules with the Open Internet Order and reject that it had anything to do with the throttling of public safety internet access. He said the company is seeking to concede just enough to make public entities like Santa Clara County happy, like un-throttled connections for first responders -- while shifting blame away from the loss of the 2015 internet rules.
"It's totally intentional," he said. "What they hope is not going to happen is that policy makers are going to figure out getting rid of the 2015 rules was a bad idea."
One big question hanging over the meeting, though never explicitly mentioned, was the recently passed SB 822, which was signed by Gov. Jerry Brown as a means of restoring net neutrality protections at the state level. Whether the law will go in effect is contingent on the lawsuit Mozilla Corp. v. FCC, which challenges the 2017 Restoring Internet Freedom order. One possible outcome, Falcon said, is that the courts will decide the FCC can abandon its policing job over internet service providers but cannot preempt states from regulating the companies, which means the county could request that state Attorney General Xavier Becerra investigate the Verizon incidents.
Until then, Falcon said there really isn't much recourse for Santa Clara County.
"I'm glad the county had this hearing, but the county can do nothing about Verizon," he said. "There is no legal remedy for the county. Verizon is handling this purely from a PR perspective."