Computer companies are telling a California District Court that it should deny an effort by the Trump Administration to block California's tough new net neutrality law from going into effect.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization.

In an amicus brief filed this week, the Open Technology Institute told the court that telecom companies have "a long history of violating net neutrality and haven't performed well during the COVID-19 pandemic."

The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The government is seeking a preliminary injunction to block California from being able to enforce the law. OTI said that injunction should be rejected.

ACA Connects and other ISP organizations have filed similar motions to put the California law on hold.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's RIF order--federal appeals court upheld the majority of the decision exactly one year ago (Oct. 1, 2019).--as well as various motions in the California district court.

A trio of Democratic senators are grilling mobile carriers about allegations they were throttling internet traffic. 

The FCC last fall eliminated the rule against throttling traffic as part of its Restoring Internet Freedom (RIF) order, though ISPs said they had no plans to do so, and if they did they would have to inform the FCC and the public per the transparency requirement in the RIF order. 

In letters to AT&T, Verizon, Sprint and T-Mobile, Sens. Edward J. Markey (D-Mass.), Richard Blumenthal (D-Conn.), and Ron Wyden (D-Ore.) said "all online traffic should be treated equally, and internet service providers should not discriminate against particular content or applications for competitive advantage purposes or otherwise,” citing reports they had throttled content from Netflix, YouTube, Amazon, and NBC Sports, and wanted answers to the following questions: "Has your company put into practice policies to throttle or prioritize internet traffic for consumers? What is the purpose of these policies?

"Are consumers able to opt-in or opt-out of traffic differentiation? Does a customer’s choice change the price or affect their service, such as data allocation or requiring a different plan?

"How do you determine which network traffic receives faster or slower treatment? Is it based on content, behavior, or IP address?"

Asked about the senators' letter and the allegations of throttling, FCC chair Ajit Pai said that his understanding that the data that went into that throttling conclusion (the study was based on data collected from an app called “Wehe," according to the senators) had not been made available for vetting, but that any issues could be addressed by the Federal Trade Commission to the extent someone wanted to invoke its authority and that process was sufficient to protect consumers and competition.

CTIA, which represents telcom ISPs, said when the Wehe study first gained attention that it had "failed to account for basic wireless network engineering, consumer preference, and how mobile content is distributed over the internet."

CTIA says that what the app is actually detecting is "is basic wireless network management and operators delivering the service consumers choose," or it is measuring data management by content providers which, it says, "have data practices in place – outside the control of providers – that reduce video resolution of data traffic flowing through their sites or apps depending on the consumer’s mobile device."

Throttling of its Internet speeds per a lower-priced Verizon data plan had a significant impact on one fire department's ability to provide emergency and potentially life-saving services.

That is according to testimony and documents provided by the fire chief of Santa Clara County, one of the California counties fighting the largest wildfire in the state's history. It came in the legal challenge to the FCC's lifting of regulations against online blocking, throttling and paid prioritization.

Related: Court Sets Briefing Schedule for Net Neutrality Challenge

Initial petitioners' briefs to the U.S. Court of Appeals were due Aug. 20, and in an addendum to one of those, fire chief Anthony Bowden said that county fire personnel had to use other agencies ISPs and their own personal devices and that while Verizon did ultimately lift the throttling, it was only after the fire department had subscribed to a new, more expensive, plan.

That came after, in the midst of responding to the Mendocino Complex Fire, they found that their data rates had been reduced to 1/200th or less of previous speeds, meaning it was essentially nonfunctional, "despite being informed that throttling was actively impeding County Fire's ability to provide crisis-response and essential emergency services," he told the court, adding: "Even small delays in response translate into devastating effects, including loss of property, and, in some cases, loss of life."

Verizon responded that it usually lifts such limits when contacted by emergency services, and should have done so in this case.

Bowden included copies of an email string from July that contained the following from someone identified as a Verizon government accounts manager: 

"All unlimited data plans offered by Verizon have some sort of data throttling built-in, including the $39.99 plan. Verizon does offer plans with no data throughput limitations; these plans require that the customer pay by the GB for use beyond a certain set allotment."

"[P]ublic safety customers have access to plans that do not have data throughput limitations. However, the current plan set for all of SCCFD's lines does have data throttling limitations. We will need to talk about making some plan changes to all lines or a selection of lines to address the data throttling limitation of the current plan."

"This situation has nothing to do with net neutrality or the current proceeding in court," Verizon said in a statement.

"We made a mistake in how we communicated with our customer about the terms of its plan. Like all customers, fire departments choose service plans that are best for them. This customer purchased a government contract plan for a high-speed wireless data allotment at a set monthly cost. Under this plan, users get an unlimited amount of data but speeds are reduced when they exceed their allotment until the next billing cycle. Regardless of the plan emergency responders choose, we have a practice to remove data speed restrictions when contacted in emergency situations.

"We have done that many times, including for emergency personnel responding to these tragic fires. In this situation, we should have lifted the speed restriction when our customer reached out to us. This was a customer support mistake. We are reviewing the situation and will fix any issues going forward."

In a sweeping decision, FCC chair Ajit Pai is proposing to essentially wipe the slate clean of most net-neutrality regulations adopted under the Title II-based 2015 Open Internet order by the then Tom Wheeler-led FCC.

The Restoring Internet Freedom Draft Order  circulated earlier today (Nov. 21) repeals the bright-line rules against blocking, degrading and paid prioritization and pre-empts any attempts by states and localities to impose their own versions, according to senior FCC officials speaking on background.

The order will be publicly released Wednesday (Nov. 22), and is certain to get major pushback from Democrats on the Hill and activists elsewhere. 

The FCC concluded that the costs of the rules, which were substantial, outweigh the benefits. Eliminating virtually all the rules could leave the field open for Congress to adopt its own targeted, bright-line rules, as some Republicans were indicating following circulation of the item.

But it retains and even adds a transparency requirement that ISPs will have to publicly disclose if they engage in blocking, throttling, affiliate prioritization, or paid prioritization, and just what they are blocking or prioritizing.

The FCC will use transparency as the means of getting at potential anticompetitive conduct.

The Department of Justice could then decide whether those were threats to competition, and the Federal Trade Commission can police the internet practices of ISPs as it does with Google or Facebook, using its authority against unfair or deceptive activity.

ISPs have pledged not to block of throttle, and the officials said the FCC expects them to hold to those promises.

The Restoring Internet Freedom Draft Order will change ISPs from a telecommunications service under "heavy handed" Title II to an information service under "light touch" Title I, they said.

Mobile broadband would return to a private mobile radio service designation, so both wired and wireless would no longer be under Title II mandatory access conditions.

The FCC order re-evaluates the agency's authority under Sec. 706 and concludes it is not an independent grant of authority. Sec. 706 is the congressional directive to ensure that advanced telecommunications is made available to all Americans in a reasonable and timely fashion.

It modifies the transparency rule with the targeted disclosure additions. The item would eliminate additional reporting obligations under the Title II order because the costs outweigh consumer benefits.

The item eliminates the general-conduct standard as too vague.

Officials said they had vetted the millions of comments on the item, but pointed out that there were millions of form letters on both sides. They said to the extent the comments just stated opinions and did not offer new facts did not have much bearing on the order.

They said 7.5 million of those comments were the same comment submitted repeatedly.

"The time has come to overturn the market disrupting net neutrality and common carrier regulations that sacrificed decades of precedent and the independence of the agency for political ends while doing nothing to protect actual consumers,"said Commisioner Michael O'Rielly. "The Internet was a vibrant place of commerce and public discourse before the rules ever took effect and will continue to flourish after we discard this unnecessary and harmful regulatory overhang. I look forward to reviewing the Chairman’s proposal and working together to ensure that the order contains the necessary legal and analytical foundations, including preemption, to implement sound policy and withstand the challenges that are certain to ensue."

Democratic FCC commissioner Jessica Rosenworcel, who voted for the 2015 Open Internet order, labeled the new order offensive and called for public hearings on it before the Dec. 14 vote, saying: “Today the FCC circulated its sweeping rollback of our net-neutrality rules. Following actions earlier this year to erase consumer privacy protections, the Commission now wants to wipe out court-tested rules and a decade’s work in order to favor cable and telephone companies. This is ridiculous and offensive to the millions of Americans who use the Internet every day.

"Our Internet economy is the envy of the world because it is open to all," she continued. "This proposal tears at the foundation of that openness. It hands broadband providers the power to decide what voices to amplify, which sites we can visit, what connections we can make, and what communities we create. It throttles access, stalls opportunity, and censors content. It would be a big blunder for a slim majority of the FCC to approve these rules and saddle every Internet user with the cruel consequences.

"I’ve called for public hearings before any change is made to these rules, just as Republican and Democratic Commissions have done in the past," Rosenworcel added. "We should go directly to the American public to find out what they think about this proposal before any vote is taken to harm net neutrality.”

Verizon is dismissing a net-neutrality group's characterizations of what the telco said were common network management tests.

Public Knowledge had jumped on reports that the wireless ISP was "throttling" video streaming services as part of a video optimization test, and had done so without warning to customers.

"Current net-neutrality rules clearly state that providers may employ reasonable network management practices to ensure that their networks and services run efficiently and work well for their customers," a Verizon spokesman said. "Video optimization is a non-discriminatory network management practice designed to ensure a high quality customer experience for all customers accessing the shared resources of our wireless network."

He said the company has let customers know about its various network practices, which are common in the industry, adding, "It's not in our interest to do anything to jeopardize the products or services that our customers rely each and every day.

Public Knowledge pointed out that the FCC staff, in the waning days of former chair Tom Wheeler's tenure, had set out guidelines for reasonable network management, including evaluating video optimization, but that new FCC chair Ajit Pai had rescinded that report.

"ISPs need to know that tests to improve their system or develop new products won’t be mistaken for by their customers for bad behavior that undermines confidence in the network," Public Knowledge senior vice president Harold Feld said. “The guidelines distinguishing ‘throttling’ from ‘reasonable network management’ developed as part of the FCC’s investigation into T-Mobile’s Binge On service provided precisely this certainty.... Before, Verizon could simply point to the FCC guidelines to reassure their customers. Today, we must look to chairman Pai to tell us whether subscribers have anything more to rely on than Verizon’s promises."

Feld said that was one reason Pai should not try to roll back the Open Internet order or its Title II underpinning.