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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
to a few heavily-contested public-safetyrelated incidents. Notably, none of the claims arises from the time period prior to the existence of rules governing ISPs.
Even if these claims were validand we find below that they are notthey do not establish a compelling basis to reconsider the Restoring Internet Freedom Orders determinations and impose preemptive, industry-wide, utility-style regulations. The dearth of evidence of practices harmful to public safety is unsurprising, as ISPs lack an economic incentive to engage in practices such as blocking or throttling, especially when these practices may harm public safety.
35. Commenters opposing the Restoring Internet Freedom Order repeatedly cite as support a 2018
incident involving the decrease in the Santa Clara, California fire departments broadband service speed during an emergency. However, as explained below, the changed regulatory posture in the Restoring Internet Freedom Order had no bearing on how this incident played out, both because the broadband service at issue was not subject to either regulatory regime and because the providers conduct would not have been prohibited under the Title II Order even if it did apply. Notably, no commenter contested in their reply comments other commenters claims that the incident would not have been prevented under the Title II Order. The County of Santa Clara asserts that while the Countys firefighters were in the midst of fighting the Mendocino Complex Fire in the summer of 2018, Verizon severely throttled the broadband internet of the fire department, which prevented the departments equipment from tracking, organizing, and prioritizing resources from around the state and country to where they are most urgently needed.
The County of Santa Clara concedes that Verizon reduced the speed of the fire departments broadband service because the fire departments account had exceeded its monthly data cap.
Although Verizons established practice was to not enforce data speed restrictions on public safety users plans during emergency situations, a customer service error led to the speed of the fire departments service being reduced despite this policy. Verizon contends that once its management learned of the customers complaint, Verizon immediately and publicly addressed the situation, including by updating training for call center representatives to ensure that they are aware that they must promptly remove any data throughput limitations for first responders in an emergency. That same
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week, Verizon introduced a new plan for public safety customers that eliminated any data speed restrictions for first responders, at no additional cost, and that gave other public safety customers two month leeway before any throughput limitation would be enforced.
36. As an initial matter, the Santa Clara incident is not relevant to an analysis of the effect of the Restoring Internet Freedom Order on public safety. Because the fire departments service plan from Verizon was an enterprise plan rather than a massmarket service, it is not a broadband internet access service under either the Title II Order or the Restoring Internet Freedom Order. Even if the service plan had been a mass-market service, however, the record does not demonstrate that it would have run afoul of the Title II Order. Neither the classification of broadband internet access service as a telecommunications service nor the Title II Orders bright line rules prohibited data use caps such as the one in the fire departments service plan. In fact, the Title II Order specifically explained that 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. Neither does the record demonstrate that the possibility of case-by-case review of data caps under the general conduct rulewith its uncertain outcomes would have prohibited such plans.
Following the incident, to avoid another such error, Verizon took a number of steps, such as updating training for call center representatives to ensure that they are aware that they must promptly remove any data throughput limitations for first responders in an emergency and introducing a new plan for public safety customers that eliminated any data speed restrictions for first responders, at no additional cost.
Thus, the issue was quickly addressed due to public awareness and marketbased pressure on Verizon to take swift corrective actionprecisely the mechanisms that we anticipated would be most effective under the Restoring Internet Freedom Orders light-touch approach. Further, the record does not provide demonstrable evidence that the Title II Order regime would have resulted in any incremental benefit. We disagree with Free Press assertion that Title II allowed the Commission to do more than just enforce those Net Neutrality rules. It also empowered the Commission to assess and prevent other forms of unjust or unreasonable behaviorwhich may well have
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included Verizons decision to cap and throttle firefighters during an emergency. . . . It is undisputed that Verizons plan with respect to Santa Clara County was not a broadband internet access service offering;
therefore, as discussed above, it would not have been subject to the internet conduct rules under the Title II Order, including the no unreasonable interference/disadvantage standard.
37. We also disagree with ADT that two incidents from 2015 and 2016
warrant Commission rules prohibiting blocking and throttling of public safetyrelated services. ADT alleges an incident occurred in 2015, in which a number of its customers in Puerto Rico using a specific broadband provider suddenly lost the ability to use features of its home automation service that enables customers to control their alarm systems remotely or to access their video surveillance cameras, and another, similar incident occurred on the mainland in 2016. We considered and rejected such concerns as a basis for conduct rules in the Restoring Internet Freedom Order, however, explaining that it is unclear if the blocking was intentional and the blocking was resolved informally. ADT does not provide any new information here that justifies revisiting those observations.
Further, we observe that ADT has not pointed to any such issues since the adoption of the Restoring Internet Freedom Order, consistent with our expectation that ISPs are unlikely to risk the reputational damage of engaging in such practices. In addition, our transparency rule requires ISPs to disclose such practices, which would enable alarm services companies like ADT to address such issues in a timely manner. Indeed, ADT itself recognizes that the currently mandated disclosures provide a framework for ensuring that public safety and alarm company communications using broadband services are afforded protections against unintentional blocking or throttling, that they are informed of mechanisms to promptly restore services, including any repair or restoration performance metrics, and that they are provided contact information necessary to trigger ISP corrective actions. ADT urges us to remind ISPs that they must prominently display contact information and sufficiently disclose the mechanisms to have service promptly restored in the event of inadvertent blocking or throttling of broadband services. We restrict this Order on Remand to addressing the issues specifically remanded by the D.C.
Circuit and decline to comment upon or
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