Repealed Net Neutrality Regulations Wouldn't Have Applied To Santa Clara County Firefighters

John Kruzel at PolitiFact recently rated as “Half True” the claim that Verizon’s throttling of the data service it provided to the Santa Clara County Fire Prevention District (FPD) during the Mendocino (CA) fires demonstrated the danger of repealing the Federal Communications Commission’s network neutrality regulations. The claim should have been rated “Mostly False” to “Pants on Fire,” because the experts on whom Kruzel relied ignored critical facts and analysis.

His “Half True” rating was based on the so-called “general conduct” rule, which prohibited broadband internet access service (BIAS) providers from unreasonably interfering with or unreasonably disadvantaging end users’ ability to select, access and use BIAS or the content, applications, services, or devices of their choice. Kruzel concluded that the claimed risk to public safety was “partially accurate” because, had the net neutrality regulations remained in place, Santa Clara could have filed a complaint at the FCC on this basis.  The crucial question is whether a claim against Verizon would have had any merit. On this question, Kruzel deferred to the bare assertions of experts who said the FCC “at the very least” would have launched an investigation of Verizon had Santa Clara FPD filed a complaint. The experts cited by Kruzel include [Benton Foundation senior fellow] Gigi Sohn, who said the Santa Clara FPD “could have made a persuasive case” under the general conduct standard if that option were available, and Berin Szoka, President of Tech Freedom, who said the general conduct rule was so vague the FCC could have done whatever it wanted. These experts ignored critical facts and analysis indicating that Santa Clara County was an “enterprise” customer who wouldn’t have been entitled to invoke the protection of the repealed net neutrality regulations at all.

A thorough analysis of all the available facts indicates that a complaint filed by Santa Clara County under the former net neutrality regulations would likely have been dismissed by the FCC, because the County was a medium to large business using an enterprise service that was not subject to the agency’s rules, including the “general conduct” rule. 

[Fred Campbell is the director of Tech Knowledge, a Senior Policy Advisor with Wireless 20/20, and an adjunct professor in the Space, Cyber, and Telecommunications Law program at the Nebraska College of Law. He headed the Wireless Telecommunications Bureau at the FCC in 2007-2008, and served as Wireless Legal Advisor to FCC Chairman Kevin Martin in 2005-2006.]