California Legislators to Probe Disaster Throttling as Net Neutrality Bills Advance

The Assembly Select Committee on Natural Disaster Response, Recovery and Rebuilding plans an informational hearing Friday upon adjournment of that day’s floor session, said a spokeswoman for committee Co-Chairman Marc Levine (D). The committee is inviting witnesses from the Santa Clara County fire department, Verizon and other telecom stakeholders to explain, she said.

The Communications Committee took two 9-3 votes Wednesday to advance SB-822 and SB-460, with Democrats voting for and Republicans against. SB-822’s comprehensive net neutrality rules moved to the Assembly with a short amendment deleting a sentence that would have made its enactment contingent on enacting SB-460. The Assembly Privacy Committee planned late Thursday to have weighed advancing SB-460 to the floor. If the bills pass the Assembly by Aug. 31, they would need Senate concurrence with Assembly changes and signature of Gov. Jerry Brown (D). Litigation is likely if the bills pass the legislature by an Aug. 31 deadline, bill opponents and some members said at Wednesday’s hearing.

The usage moves concerned Rep. Freddie Rodriguez (D), he said at Wednesday’s hearing. “If our first responders are being hindered by the type of service and connections and speeds,” affecting their ability to save lives, “I’m having a problem with that,” he said. Slowing internet service creates problems, “whatever the reason is,” said Sen. Scott Wiener (D). The SB-822 author said he wants to learn more about what happened, but it’s “evidence once again of how critically important internet access is to everything including public safety.”

“Verizon is strongly committed to public safety and this was a very troubling thing to learn,” said Verizon lobbyist Heidi Barsuglia. “This particular situation, however, has nothing to do with net neutrality,” which is about content discrimination, she said. “This was content neutral” as firefighters had a plan with a data cap that reduces speeds after a certain amount is used, she said. Verizon’s practice is to remove caps in emergency situations, but the customer service representative who spoke with public safety didn’t know about that policy, Barsuglia said: “This was a mistake” and “we are actively looking into this situation now and taking proactive steps to address this.”

"No firefighters ... should ever be at risk because of a business decision by a private company," said state Sen. Bob Wieckowski (D), representing part of Santa Clara County, in a statement. "This shows exactly why SB-822 is needed.” Representing San Jose and other parts of the county, Assemblymember Kansen Chu (D) said it's "appalling that while knowing a fire is ablaze and Santa Clara County firefighters are running against time to contain the casualties and damages, Verizon still made the decision to slow down." Chu plans to work "with my colleagues to ensure that this does not happen again."

“We’re fighting for #netneutrality, because it’s vital for consumers & govt. agencies -- such as [Santa Clara County Fire Department] -- to have open access to online content without interference or manipulation by providers,” tweeted California Attorney General Xavier Becerra (D). He's part of Democratic AGs’ lawsuit against the FCC (see 1808210010).

The incident is concerning but unrelated to net neutrality, American Enterprise Institute visiting scholar Roslyn Layton blogged Thursday. “This was a clear mistake in customer service support, not a violation of rules defined by the [FCC’s] 2015 Open Internet Order.” Those permitted carriers to manage networks “including unlimited data plans that experience reduced speeds when certain usage thresholds are exceeded,” she said.

It's all "theater," said Free State Foundation Senior Fellow Seth Cooper: "Verizon's service plan for a monthly allowance of high-speed data with reduced speeds for extra usage would not have been prohibited under the FCC's old net neutrality rules."

Lawsuit Watch

State net neutrality bills are “inviting a long, long series of litigation," said state Sen. Jim Patterson, explaining why he voted no. The Republican wasn’t alone raising the specter of litigation.

“This will be a litigation boon,” with the bill likely to produce many private complaints against ISPs that will cost millions of dollars to litigate, said Civil Justice Association of California President John Doherty. AT&T thinks SB-822 is “anti-competitive and anti-consumer and is surely going to be challenged under federal pre-emption,” testified the carrier’s lobbyist, Bill Devine. Cable companies oppose the measure partly because internet is interstate and “the state is stepping beyond their legal jurisdiction in imposing any requirements" here, said California Cable and Telecommunications Association President Carolyn McIntyre.

“They are going to sue,” agreed Wiener, but “we have a strong argument that this is not pre-empted.” Congress didn’t pre-empt states and the FCC can’t pre-empt while simultaneously saying it’s ending its role in regulating net neutrality, he said.

Industry especially condemned language to limit zero rating and require net neutrality at interconnection points, as it did in previous hearings, saying those items go beyond 2015 FCC rules. Wiener and supportive witnesses, including University of California, Irvine, professor Scott Jordan -- FCC chief technology officer 2014-16 -- said the bill is consistent with the FCC order.

Interconnection agreements are national and cable has “no idea how we’re going to go about untangling those contracts … within three months" if the bill passes, McIntyre said. The bill doesn’t ban interconnection agreements, replied Wiener. “You can’t use the point of interconnection to evade net neutrality.”