Net Neutrality Expert WitnessesIntroduction:

In July of 2018, California firefighters battled a wildfire in the northern part of the state that was so severe it was declared to be half the size of Rhode Island by late August. See Aimee Pichi, “Verizon throttled firefighters’ ‘unlimited’ data during California fires, the lawsuit claims,” CBS News, Aug. 22, 2018, at https://www.cbsnews.com/news/verizon-throttled-firefighters-unlimited-data-during-california-fires-lawsuit/ (last visited Jan. 7, 2019). The 2017 and 2018 fires wreaked immense amounts of damage, and various types of litigation have ensued. See, e.g., id. This part of the series on the fires concerns filings from Santa Clara County and its fire department that is part of a twenty-three-state lawsuit against the Federal Communications Commission (FCC) and pertains to a Commission ruling regarding net neutrality.

Discussion:

The ruling being challenged by nearly half the states, several non-government entities, and now, Santa Clara County and its fire department is the FCC’s 2018 Order on the Restoring Internet Freedom Act. See, e.g., “County of Santa Clara’s Opening Brief, Mozilla Corporation, et al. v. FCC” (“Opening Brief”), USCA Case No. 18-1051, Doc. No. 1746554, filed on Aug. 20, 2018, available at https://www.sccgov.org/sites/cco/overview/Documents/2018.08.20%20NN%20Govt%20Petitioners%20Brief%20Final%20FILED.pdf (last visited Jan. 7, 2019). According to the County, the Order ended a fifteen-year policy of net neutrality, or the “open Internet,” which is defined as “the principle that broadband providers must treat all internet traffic the same regardless of source.” United States Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016); See Opening Brief, at 1-2.

The reason the changed policy pertains to the summer fires is because according to Santa Clara County’s fire chief, the department’s cell phone carrier and data provider throttled the crew’s internet speed during the crisis to 1/1200th of their original data plan, despite the fact that the fire department was supposed to have an “unlimited” plan. See, e.g., Aimee Picchi, supra. Fire Chief Anthony Bowden claimed that the throttling “’severely interfered with the [fire crew’s] ability to function effectively’ during the Mendocino Complex fire.’” Id.  Additionally, when the fire department contacted their carrier to request that the throttling stop, they were allegedly told the company would only increase their data speed if the department switched plans to one that was twice the cost of the plan it was already on. See id.

The reason this case is particularly important is that if the allegations made are accurate, they may provide evidence that ending the net neutrality policy harmed public safety and emergency response capabilities. See, e.g., id. Prior to the Santa Clara County filing, most of the parties who are petitioners challenging the FCC Order have based their legal challenge on two primary arguments: (1). that the Order violates the Preemption Doctrine, which gives broad discretion to states and local governments for issues of this nature, and (2). that the Order is arbitrary and harms consumers. See, e.g., Opening Brief, supra, at 4-5. However, the Santa Clara County brief provides a specific instance in which the throttling that the new FCC policy arguably allows may have directly harmed its 1.9 million residents and the other areas it provides firefighting services for. Id., at 9. If the Order is continued, Chief Bowden has argued that data providers and cell phone carriers “will continue to use the exigent nature of public safety emergencies and catastrophic events to coerce public agencies into higher cost plans[,] ultimately paying significantly more for mission-critical service — even if that means risking harm to public safety during negotiations.” Aimee Pichi, supra.

A number of issues pertaining to the debate over the legality and potential consequences of the FCC’s Order and net neutrality’s demise have been raised. Federalism questions may be best addressed by experts in state and federal separation of powers and those who specialize in constitutional matters. Whether the Order is harmful to consumers may be examined by experts in consumer protection matters, who can evaluate the benefits and risks to the previous prophylactic policy, versus the 2018 Order, which calls for voluntary and after-the-fact solutions. Although Santa Clara County and its fire department have joined the other petitioners in making these arguments, the 2018 wildfires provide a unique context to assess the desirability of the old net neutrality policy, as opposed to the new Order.

Because the fire department claims that the throttling to their data plan during an emergency heightened the risks and worsened the consequences, adjudicators will be called upon to consider whether the Order caused or allowed for threats to public safety. See, e.g., Opening Brief, supra, at 22-4.

The question of whether and how the Order affected the throttling at issue during the fires is hotly contested. The County argued that the FCC policy reversal contributed to acts like throttling because the Order “permits practices that violate open Internet principles but are permitted by the Order,” that the FCC did not have any discussion of the effect its order might have on public safety, which is statutorily required, and that the lack of such discussion or oversight renders the new policy “arbitrary and capricious.” See id., at 22-3. As one commentator explains, if the County and its fire chief are correct, “the issue provides a real-world example of what has largely been a hypothetical concern of net neutrality supporters — that allowing companies to manipulate their networks can have adverse consequences, some of which can be unexpected.” Phil Helsel, “Verizon admits ‘throttling’ data to Calif. firefighters amid blaze,” NBC News, Aug. 22, 2018, at  https://www.nbcnews.com/tech/tech-news/verizon-admits-throttling-data-calif-firefighters-amid-blaze-n902991 (last visited Jan. 7, 2019).

The internet provider whose conduct is the subject of Santa Clara’s concerns has admitted to the throttling but claims that its actions were simply “’a customer support mistake’” and that the situation that arose “’has nothing to do with net neutrality or the current proceeding in court.’” Id. The company contends that they do have policies in place to lift speed limits in emergencies, and such procedures have been used a number of times, including in cases of emergency responders and fires. See id.

Expert witnesses may be the key to how this matter is ultimately resolved. Experts in emergency response, net neutrality, and public safety may all have important evidence to offer in support of various positions. Moreover, because the fires provide an actual instance where throttling resulted in public harm, a court may decide the matter based upon which experts provide a more compelling narrative regarding the link between the Order and the problematic actions of the data company.

In addition to the allegations regarding how the elimination of net neutrality regulations impacted a fire department’s ability to respond to an emergency, the California Public Utilities Commission (CPUC) also claimed injuries from and in connection with the Order. In the Santa Clara County Opening Brief, it is further contended that the throttling the FCC Order allegedly permits threatened California’s energy grid. See Opening Brief, at 24-5. The County argues that “maintaining a safe and reliable grid” depends on freedom “from blocking or delay due to throttling or deprioritization.” Id., at 24-5. The way this issue is decided may turn on whether expert witnesses can prove or disprove a link between the Order and throttling to a court’s satisfaction.

Finally, the Opening Brief states that “state and local governments have modernized their public health and safety systems by moving such systems online.” Id., at 25. The County alleges, “These systems depend on the public’s access to BIAS [(Broadband Internet Access Service)] on nondiscriminatory terms,” and “The County of Santa Clara’s emergency and public health services are particularly likely to be affected by the repeal of the open Internet rules.” Id. Experts in public health and safety may be able to address whether the Order would or did, in fact, negatively impact state and local emergency services.

Conclusion:

The lawsuit against the FCC has a number of petitioners, many of whom whose interests do not often intersect. The court will have to address claims about state and federal sovereignty, whether the Order has statutory justifications or is arbitrary, and the impact of the new policy on consumer interests and protection. The 2018 California fires added a new layer to the existing litigation by providing a concrete example of how the Order may also affect public health and safety.

Experts in preemption and federalism will be well-equipped to make persuasive arguments for the more general regulatory claims, and those who specialize in federal regulation and policymaking can readily handle disputes regarding the Order’s statutory authority or lack thereof. However, because of the new dimension added by the throttling that occurred during the July wildfire, new types of expert witnesses may best be equipped to resolve the Santa Clara County allegations. Experts in emergency response, systems management and utility maintenance, public health, the fires and terrain involved, and related witnesses may prove indispensable in this litigation. Such witnesses now have empirical data on which to rely and base possible conclusions about whether or not the FCC’s Order impeded public safety. Attorneys may wish to follow developments in this case carefully to see how courts are likely to resolve this matter and determine which type of expert evidence appears to be the most persuasive. In so doing, they can maximize successes and prepare for future challenges that arise in similar instances.