Much Of The Broadband Growth Ajit Pai Credits To Killing Net Neutrality Was Actually Due To A Clerical Error

from the whoops-a-daisy dept

So a few weeks ago we noted how the Ajit Pai FCC has been trying to pretend that some modest recent broadband growth is directly thanks to its unpopular policies -- like killing net neutrality. Except a closer look at the report shows the data they used was only accurate up to the tail end of 2017, when net neutrality wasn't even formally repealed until June of 2018 (read: the growth couldn't have been due to killing net neutrality yet, because it hadn't technically happened yet). A lot of the "record fiber growth" Pai also tried to credit his policies for was actually courtesy of the fiber build-out conditions affixed to the AT&T DirecTV merger by the previous FCC.

In short, Pai's office has been falsely taking credit for some modest industry growth in broadband availability it had nothing to actually do with. And in a few instances, the FCC tried to claim that broadband growth was due to "deregulation," when market intervention (merger conditions) was actually to thank.

Now some deeper analysis shows that another huge chunk of Pai's supposed broadband growth was thanks to a... clerical error. A deeper analysis of the FCC's broadband growth numbers by consumer group Free Press showed that a company by the name of Barrier Communications Corporation appears to have dramatically overstated its broadband deployment during the period in question by a cool 1.5 million locations:

"When conducting our initial analysis of the December 2017 Form 477 Deployment data, we noticed that a new Form 477 filer, Barrier Communications Corporation (d/b/a BarrierFree), claimed deployment of fiber-to-the-home (“FTTH”) and fixed wireless services (each at downstream/upstream speeds of 940 Mbps/880 Mbps) to Census blocks containing nearly 62 million persons. This claimed level of deployment would make BarrierFree the fourth largest U.S. ISP in terms of population coverage – an implausible suggestion, to put it mildly.

This claimed level of deployment stood out to us for numerous reasons, including the impossibility of a new entrant going from serving zero Census blocks as of June 30, 2017, to serving nearly 1.5 million blocks containing nearly 20 percent of the U.S. population in just six months time. We further examined the underlying Form 477 data and discovered that BarrierFree appears to have simply submitted as its coverage area a list of every single Census block in each of eight states in which it claimed service: CT, DC, MD, NJ, NY, PA, RI, and VA.

When contacted by Ars Technica, the company in question acknowledged it had made an error when filing form 477 data with the FCC, saying the data was "parsed incorrectly in the upload process." The impact was notable, with roughly 1.5 million of the supposed 5.6 million "new" areas where 25Mbps/3Mbps speeds had been deployed never having actually existed. As noted previously, the growth Pai credits to his own "deregulatory" agenda was actually well in line with past, pre-Pai periods, and in some instances actually slower. Once you factor in all of these errors the claims get even less impressive.

Of course the formal study Pai's basing these numbers on hasn't been fully released yet. These were all just claims made in an initial FCC press release featuring very-carefully chosen statistics. Whether these and other errors are fixed in the final report (which should drop later this month or early next) should give you a good luck at just how much the current FCC actually values data integrity.

Filed Under: ajit pai, broadband, fcc, growth, net neutrality
Companies: barrier communications, free press

Mozilla, Consumer Groups Sue The FCC For Its Attack On Net Neutrality

from the litigation-nation dept

Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case:

"As a process note, the FCC decision made it clear that suits should be filed 10 days after it is published in the Federal Register, which has not yet occurred. However, federal law is more ambiguous. Due to the importance of this issue, even though we believe the filing date should be later, we filed in the event a court determines the appropriate date is today. The FCC or a court may accept this order or require us and others to refile at a later date. In fact, we’re urging them to use the later date. In either instance, we will continue to challenge the order in the courts."

Mozilla's lawsuit was filed the same day as coordinating lawsuits from consumer groups like Public Knowledge and Free Press. In a statement of its own, Public Knowledge notes it similarly filed its petition early as a preliminary and protective legal move:

"While we believe that under the best reading of the rules the FCC's Order is not ripe for challenge until it is published in the Federal Register, in the past the judicial lottery -- which determines which appellate court will hear a challenge to an FCC action -- has been run based on premature petitions. Thus, to protect our rights, we have filed today.

In other words, this is a purely procedural move, and we would not object if all early-filed petitions were held in abeyance by the FCC and the lottery is conducted based only on challenges filed after Federal Register publication. Of course, we will file to challenge the FCC at that time, as well."

The Open Technology Institute also says it also filed its own lawsuit against the FCC early, hoping to ensure a favorable court selection during the Panel on Multidistrict Litigation (MDL) lottery. All told, four of the net neutrality lawsuits were filed in the United States Court of Appeals for the District of Columbia Circuit, while the Free Press lawsuit was filed in the United States Court of Appeals for the First Circuit.

This is just the opening salvo in what will be a long-standing legal standoff between people who'd prefer the internet remain healthy and competitive, and ISPs eager to abuse a lack of competition in the broadband last mile to their own, additionally anti-competitive advantage. All of the lawsuits will attempt to prove that the FCC violated the Administrative Procedure Act by engaging in an "arbitrary and capricious" reversal of extremely popular policy without proving that the broadband market changed dramatically enough in just two years to warrant it.

As we've noted previously, the lawsuits will also focus on how the FCC turned a blind eye to identity theft and comment fraud during the FCC's open comment period, and efforts by some group or individual to try and downplay the massive public opposition to the FCC's handout to the telecom sector. Expect more details on the origins (and potentially funding) of these efforts as the legal fight moves forward over the coming months and years. Though some ISPs surely won't be able to help themselves, expect ISPs to try and remain on their best behavior for a while to avoid undermining their arguments in court.

Should they win in court however, it can't be understated how the attack on net neutrality is just one small part of an over-arching ISP lobbying effort to remove nearly all meaningful state and federal oversight of some of the least-liked, least-competitive companies in America. That involves efforts to pass loophole-filled fake net neutrality laws with one goal: preventing tough, real rules from being passed down the road by a less Comcastic Congress or FCC.

Filed Under: fcc, lawsuit, net neutrality
Companies: free press, mozilla, open technology institute, public knowledge