WASHINGTON D.C. —­­ Yesterday, TechFreedom filed comments on a petition for rulemaking filed by the National Telecommunications and Information Agency (NTIA), asking the Federal Communications Commission to update the Wireless Priority Service rules for the first time since 2001 — and to generally clarify that National Security and Emergency Preparedness (NS/EP) users may be prioritized over non-emergency users on wireless services. TechFreedom also published a detailed blog post debunking false claims that Verizon had “throttled” the Santa Clara County, California, Fire Prevention District’s (FPD) wireless Internet use for a command and control device.

“NTIA is right: we can’t let sensationalist rhetoric about net neutrality, ginned up for partisan political purposes, get in the way of public safety services,” said James Dunstan, TechFreedom’s General Counsel. “Title II of the Communications Act gives the FCC vast authority to declare any common carrier’s practices ‘unreasonable,’ even without specific rules. This could potentially include the manner in which carriers and ISPs voluntarily prioritize public safety users over other users in times of emergencies. But providers will hesitate to provide such prioritization if they run the risk of liability (criminal liability under some state laws), in providing prioritized services to public safety users that throttles or curtails, even briefly, commercial traffic.”

“Even so, the FCC shouldn’t rush through NTIA’s proposal,” warned Dunstan. “Currently, providers may block future commercial traffic to provide a ‘clear lane’ for NS/EP communications (providing a ‘next open channel’). NTIA now wants to allow providers to terminate or throttle commercial traffic in progress. This requires a lot more study. Will consumers whose calls are cut off during a flood or hurricane immediately dial 911, and thus swamp our public safety systems? Consumers expect an ‘always on’ communications grid. At a minimum, massive public education will be required before the FCC changes such a fundamental part of our communications infrastructure.”

“Net neutrality activists are now exploiting public safety concerns as an argument for maximizing the FCC’s power to regulate the Internet under Title II,” said Berin Szóka, President of TechFreedom. “The FPD knew its device might need up to 150-300 GB of 4G data per month when deployed in the field — yet chose a data plan that offered only 25 GB/month of 4G data, with slower speeds after that. When the FPD first complained about the speed restriction, last December, Verizon suspended the restriction temporarily — per its generous policy to do so for any government user that asked. Somehow, the FPD misunderstood, thinking that the device had been permanently exempted from the data cap — that Verizon would allow the FPD to use 75 times as much data as the typical consumer for the same monthly rate. In June, apparently the next time the device was deployed long enough to encounter the speed restriction, the confusion blew up when a Verizon customer service representative failed to suspend the speed restriction again. Yes, Verizon failed to train him properly, but ultimately, the company was the victim of its own generosity.”

“What happened had nothing to do with net neutrality,” concluded Szóka. “Even the FCC’s 2015 Open Internet Order acknowledged that service plans that offer basic data allowances, with slower but unlimited data beyond that didn’t violate the FCC’s ban on throttling — and that such plans benefited the overwhelming majority of consumers by offering them cheaper data plans that better met their needs. At most, such customer confusion is the kind of standard consumer protection issue the Federal Trade Commission has been policing for decades; it certainly doesn’t require a special FCC rule. Indeed, the FTC recently settled a case against AT&T for how the company marketed similar ‘unlimited’ plans.”

“These two situations demonstrate why it’s vital that Congress finally enact a clear net neutrality law,” concluded Dunstan. “Federal legislation should codify core net neutrality principles, but also cannot leave the FCC and states with unchecked discretion to declare network management practices and service plans unreasonable. Such looming uncertainty will not only deter investment, as Democrats and Republicans recognized in the late 1990s, but also deter providers from meeting public safety needs.”


We can be reached for comment at media@techfreedom.org. See more of our work on Net Neutrality, including:

  • Our statement on our letter about why CRA won’t restore Title II
  • Our statement on the 2017 Blackburn bill: “Republicans Propose Net Neutrality Again. Will Democrats Engage?”
  • Our 2018 statement on the need for net neutrality legislation
  • Only Congress, not the FCC can fix net neutrality, Szóka’s op-ed in WIRED
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s op-ed in the Washington Post
  • The Feds lost on net neutrality, but won control of the Internet, Szóka’s op-ed in WIRED