Verizon’s Congestion Management Policy Is ‘Narrowly Tailored,’ Carrier Says in Response to Wheeler Letter
Verizon sent FCC Chairman Tom Wheeler a five-page letter defending its practice of slowing the data speeds of some of its customers, saying in a five-page letter its practices are in keeping with steps also taken by the rest of industry. The letter cites similar steps by AT&T, Sprint and T-Mobile and says the policy was “implemented nearly three years ago” to manage congestion at some of its cell sites and is “narrowly tailored.”
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Wheeler sent Verizon Wireless CEO Dan Mead a letter last week asking about the carrier’s announcement it would slow data speeds on its LTE network starting in October, but only for the top 5 percent of data users on unlimited data plans. Wheeler said he was “deeply troubled” by the development (WID July 31 p4).
Kathleen Grillo, senior vice president-federal regulatory affairs, answered Wheeler the next day. Verizon released the letter Tuesday.
"The rationale is to provide the best possible network experience for customers, given the realities that network resources are finite and shared and that occasional states of unusually high demand on particular cell sites are unavoidable in the case of wireless networks,” Grillo said. “We also know that a very small percentage of customers are extremely heavy users who use a disproportionate amount of network resources and have an out-sized effect on the network. Not surprisingly, many of these heaviest users of the network are on unlimited data plans."
Wheeler raised concerns in part because Verizon bought 700 MHz C-block spectrum in the 2008 auction, which carried with it specific net neutrality restrictions. “Network optimization is a form of reasonable network management that is consistent with both the C Block rules and the Commission’s 2010 Open Internet rules,” Grillo wrote.
Public interest groups were divided on the Wheeler letter and the response from Verizon. “Whether or not it’s also intended to push customers away from unlimited plans, Verizon’s practice is reasonable network management,” said Free Press Policy Director Matt Wood. “It seemed harsh for the FCC to suggest that this is not based on network architecture or technology considerations.” Wood said Verizon slows users only when they connect to a cell site seeing high demand. That technique seems to be “at least as targeted and tailored to congestion, if not more so, than the practices employed by other wireless and wireline ISPs,” he said.
Verizon hasn’t adequately addressed transparency concerns, said John Bergmayer, senior staff attorney at Public Knowledge. Bergmayer questioned whether customers will even know they're in the class of subscribers subject to being restricted. “How often and where does this congestion management tend to occur?” he asked. “There needs to be more visibility into what is happening, and it’s not clear that selecting users to be throttled based on criteria that have nothing to do with the actual congestion that is happening at that moment is necessarily the right approach.”
Verizon’s letter offers clarity that its practices are in keeping with those of other carriers, practices the commission has blessed in the past, said Daniel Lyons, associate professor at Boston College Law School. The letter should “assuage at least some of the chairman’s concerns that the practice is a ploy to boost revenue by migrating unlimited customers to usage-based plans,” Lyons said. If Verizon slows connections only during periods of congestion “it really is just an issue of how to allocate limited spectrum fairly among all relevant customers,” he said. The practice likely helps other subscribers affected by the congestion, he said.
Other industry lawyers questioned the politics behind the Wheeler letter. A former senior FCC official who does not represent carriers predicted the issue “will likely die on the vine."
"This should be enough to settle the issue: Verizon’s policy protects the rest of us from the very heaviest data users still on unlimited data plans,” said Berin Szoka, president of TechFreedom. “But it probably won’t be enough to make the issue go away because this is more about politics than substance.” Wheeler continues to be under enormous pressure to reclassify broadband as a Title II service, Szoka said. FCC officials realize re-opening “the key definitions” of the Telecom Act “would be a disaster, not just for broadband companies but for other companies that would get swept into Title II,” he said. “They also surely know that the FCC can’t easily forbear away the problems raised by Title II. Yet they have been backed into a corner and are looking for ways to appease the angry mob at their gates.”
Verizon’s response ought to be enough to satisfy the chairman, said Randolph May, president of the Free State Foundation. Verizon’s policy is “the essence of reasonable network management,” May said. “If Wheeler doesn’t accept the response, then I fear he may be intent on traveling down the wrong road -- a road that leads not only to bringing wireless providers into the net neutrality regime, but, more specifically, into a Title II rate regulatory regime.”