AT&T Ends Quest To Erode FTC Authority Over Broadband Providers

from the zero-accountability dept

As we've noted for a while, the ISP attack on net neutrality is only one small part of a broader gambit to eliminate all federal and state oversight of telecom monopolies. Not only did the "Restoring Internet Freedom" net neutrality repeal kill net neutrality, it neutered the FCC's ability to adequately police some of the most anti-competitive companies in America. At the same time, language embedded in the repeal also attempts to neuter state authority over ISPs, something some cable companies are already using to try and wiggle out of lawsuits over substandard service and slow speeds.

All the while, ISPs and their policy BFFs have tried to argue that this massive neutering of state and FCC authority over ISPs was no big deal because the FTC would rush in and save the day, ignoring the fact that the FTC's authority over broadband providers is already shaky. The agency can't make rules as conditions warrant (like the FCC), and can only act against ISPs if a behavior is clearly shown to be "unfair and deceptive," something not easy to do in the net neutrality realm where anti-competitive behavior is often dressed up as "reasonable network management."

As ISPs and their allies told anyone who'd listen the FTC was perfectly suited to police ISPs, they routinely "forgot" to mention that AT&T has spent the last few years in court trying to dismantle any remaining FTC authority over ISPs completely as it tried to tap dance around an FTC lawsuit for lying to consumers about the company's throttling practices. Ironically, AT&T lawyers had been trying to argue that the same common carrier rules AT&T has fought tooth and nail against on the net neutrality front exempt it from FTC oversight.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. But lately those efforts haven't been going so well, with several lower court rulings hampering AT&T's quest for zero government accountability. And while AT&T had hinted that it would pursue the case all the way to the Supreme Court, last week the company quietly announced that it wouldn't be chasing this particular dream any longer:

"AT&T has given up its years-long quest to cripple the Federal Trade Commission's authority to regulate broadband providers. Just weeks ago, AT&T said it intended to appeal its loss in the case to the US Supreme Court before a deadline of May 29. But today, AT&T informed court officials that it has decided not to file a petition to the Supreme Court and did not ask for a deadline extension."

In addition to having trouble with lower court rulings, AT&T's trying to secure regulatory approval for the company's $86 billion merger with Time Warner. But AT&T's decision to back off its quest also likely reflects efforts to reach a settlement with the FTC over its throttling practices, and the company's surely eager to put the four year old case behind it with what (based on other actions by this administration) is likely to be a light wrist slap of a settlement.

On the positive side, this means the FTC can at least make some effort to protect net neutrality when the FCC's rules officially expire on June 11. That said, even with its authority intact there's frankly not much the FTC can do to punish ISPs that violate net neutrality provided said ISPs are just a little bit clever about how they go about it. Meanwhile, ISPs like AT&T are still threatening to "aggressively" sue any states that try to protect consumers in the wake of the Trump-induced federal apathy toward bad behavior by giant broadband monopolies.

Filed Under: authority, broadband, fcc, ftc, oversight, regulation
Companies: at&t

E-Mails Show FCC Made Up DDOS Attack To Downplay The 'John Oliver Effect'

from the disinformation-nation dept

You might remember that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss Trump FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. That's not a particular shock; the FCC's website has long been seen as an outdated relic from the wayback times of Netscape, hit counters, and awful MIDI music.

But then something weird happened. In the midst of all the media attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by former FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:

"Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC."

But the FCC's claims were seen as suspect by numerous security experts, who say the crash showed none of the usual telltale signs of an actual DDOS. And reports subsequently emerged indicating that the "analysis" the FCC supposedly conducted never actually occurred. When media outlets began noticing that something fishy was going on, the Trump FCC issued a punchy statement accusing the media of being "completely irresponsible." No evidence was ever provided to journalists or lawmakers that pressured the agency for hard data proving the claims.

Fast forward to this week, and new internal FCC e-mails obtained via FOIA request show that yes, the FCC did routinely try to mislead the public and the press with repeated claims of DDOS attacks that never actually happened:

"The FCC has been unwilling or unable to produce any evidence an attack occurred—not to the reporters who’ve requested and even sued over it, and not to U.S. lawmakers who’ve demanded to see it. Instead, the agency conducted a quiet campaign to bolster its cyberattack story with the aid of friendly and easily duped reporters, chiefly by spreading word of an earlier cyberattack that its own security staff say never happened."

The story is worth a read, and highlights how former FCC CIO David Bray and FCC media relations head Mark Wigfield repeatedly fed false information about the nonexistent attack to reporters, then used those (incorrect) stories to further prop up their flimsy claims about the DDOS:

"Bray is not the only FCC official last year to push dubious accounts to reporters. Mark Wigfield, the FCC’s deputy director of media relations, told Politico: “there were similar DDoS attacks back in 2014 right after the Jon Oliver [sic] episode.” According to emails between Bray and FedScoop, the FCC’s Office of Media Relations likewise fed cooked-up details about an unverified cyberattack to the Wall Street Journal.

The Journal apparently swallowed the FCC’s revised history of the incident, reporting that the agency “also revealed that the 2014 show had been followed by DDoS attacks too,” as if it were a fact that had been concealed for several years. After it was published, the Journal’s article, authored by tech reporter John McKinnon, was forwarded by Bray to reporters at other outlets and portrayed as a factual telling of events. Bray also emailed the story to several private citizens who had contacted the FCC with questions and concerns about the comment system’s issues."

The story isn't going to get much mainstream traction thanks to numerous other instances of cultural idiocy we're all currently soaking in, but it's fairly amazing all the same. In short, the FCC appears to have completely concocted a fake DDOS attack in a ham-fisted effort to try and downplay the massive public opposition to its extremely-unpopular policies.

Of course that's pretty standard behavior for an agency that also blocked a law enforcement inquiry into fraud during the public comment period, likely also an effort to downplay massive public opposition to the repeal. It's also pretty standard behavior from a Trump administration that enjoys using bullshit to distract from the fact that countless policies (like repealing net neutrality) run in stark, violent contrast to the admin's "populist" election message.

This isn't likely to be the end of this story, and more details are likely to surface in the looming lawsuits against the FCC attempting to restore net neutrality.

Filed Under: ajit pai, david bray, ddos, fcc, john oliver, lies, net neutrality, public comments

California's Tough New Net Neutrality Law Takes Another Step Forward

from the you-made-this dept

In the wake of the Trump FCC's attack on net neutrality last December (which formally takes effect on June 11), more than half the states in the country are now exploring their own net neutrality rules. Some states (like Oregon and Washington) have passed state laws, while others (like New York and Montana) have embraced new executive orders that limit ISP ability to strike state contracts if they violate net neutrality. All told, it's not exactly the outcome AT&T, Verizon, and Comcast lobbyists were hoping for, and it's a pretty solid indication they really didn't think this entire thing through particularly well.

But at the moment, most eyes rest on California, where one of the tougher new state-level replacement laws just took a major step forward.

Senator Scott Wiener’s SB 822 would prevent ISPs in California from engaging in blocking, throttling, or paid prioritization. The EFF has called the bill the "gold standard" for state-level net neutrality law. The proposal actually goes a bit further than the FCC rules it's intended to replace, in part because it more tightly polices things like zero rating and usage caps, which have long been used anti-competitively by incumbent ISPs as a way to make life more difficult for companies trying to elbow in on traditional TV revenues.

Despite a major push by industry lobbyists, SB 822 last week was approved 23-12 by the California Senate and will now head to the state Assembly (sometime before the end of this month). If it passes there, it will be on to the desk of Governor Jerry Brown for signing.

California's law will be one to watch. Comcast, AT&T and Verizon successfully lobbied the Trump FCC to include language in their net neutrality repeal attempting to ban states from protecting broadband consumers, language companies like Charter are already using to try and tap dance out of lawsuits for substandard service. But the FCC's authority here is shaky, and some legal experts (like Stanford Professor Barbara van Schewick) have argued that when the FCC rolled back its Title II authority over ISPs, it also dismantled its right to tell these states what to do:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

ISPs have promised to "aggressively sue" any states that try to pass rules protecting net neutrality or broadband consumer privacy. And while this will only disgust the majority of Americans even more, the combination of limited competition and rubber stamp regulators like Ajit Pai means there's not much in the way of punishment for the tech policy equivalent of giving a giant middle finger to the nation's consumers, small businesses, and healthy competition.

Filed Under: california, fcc, net neutrality, scott wiener

Thanks To No Competition, Broadband Satisfaction Scores Plummet

from the this-is-why-we-can't-have-nice-things dept

For years now we've documented the shitshow that is broadband industry customer satisfaction. That shitshow is generally thanks to a continued lack of real competition in the space, which lets these companies not only mindlessly raise rates like it's going out of style, but it gives companies like Comcast the leeway to experiment with terrible, anti-competitive practices like arbitrary and punitive usage caps and overage fees. And that's of course before you get to the clown car that passes for customer service at many of these companies, which routinely makes headlines for all the wrong reasons.

Year after year we witness a rotating crop of bizarre stories highlighting how terribly these entrenched monopolies treat their subscribers. And each year industry executives insist that they've learned the error of their ways and have dedicated themselves and their budgets to fixing the "consumer experience."

Except because these companies all but own state and federal lawmakers-- and see virtually no competition in their markets (especially at higher speeds)--things never actually get better. Case in point: the American Customer Satisfaction Index has released their latest analysis of customer satisfaction with the broadband industry. And what they found isn't pretty. In short, every single major ISP but one saw a decline in customer satisfaction over the last year:

Note that these scores are worse than every other industry the ACSI tracks, including the airline, insurance, and banking sectors. And these scores are even well below consumer satisfaction with many government agencies, including the IRS.

Comcast in fact is the only company to see no change whatsoever (though its TV services saw a 1 point decline), which is still notable given its 2014 promise that the hiring of a customer experience VP and other well-hyped improvements were going to "revolutionize" the way Comcast consumers were treated. Other companies like Charter (Spectrum) are in absolute free fall, dropping 8% year over year thanks to the poor service, rate hikes and empty promises in the wake of the company's bungled $89 billion acquisition of Time Warner Cable and Bright House Networks.

And while things like gigabit broadband get a lot of media hype, we've noted that the lack of competition driving this problem is only getting worse. Numerous telcos have all but given up on residential broadband to shift their focus toward video advertising and enterprise services. And as they refuse to upgrade millions of DSL subscribers they don't actually want, cable companies like Comcast and Charter are securing a greater monopoly over broadband than ever before.

Some like to claim new wireless technologies (like 5G) will emerge to magically provide competition to these providers. But while 5G wireless will provide faster, lower-latency and more resillient networks, it won't fix the business data service monopoly that drives high prices and many of the competition issues in the wireless sector. Nor will it address the industry's plan to keep putting ma bell back together via an endless array of competition-reducing megamergers. And however promising 5G is, it's not a substitute for uncapped, fixed broadband -- especially in more rural areas and less affluent cities.

While cable secures a growing monopoly over fixed-line broadband, monopoly ISPs (with the Trump administration's help) are gutting all FTC, FCC and state oversight over their regional monopolistic fiefdoms. All while regulators like Ajit Pai whisper sweet nothings about how eliminating popular consumer protections like net neutrality will magically improve sector investment and competition. Surely this all works out well for the consumer, right?

Filed Under: acsi, broadband, competition, customer satisfaction, fcc
Companies: charter, comcast, time warner, verizon

FCC Wants Ebay, Amazon To Crack Down On Kodi-Based Pirate TV Boxes

from the control,-not-copyright dept

For years now, tinkerers everywhere have built custom-made PCs that use the open-source Kodi platform. Highly flexible and customizable, this hardware can often work notably better than the locked-down TV hardware (especially traditional cable boxes) that are the norm. But the hardware can also be used to streamline access to copyright content. And in more recent years, outfits like Dragonbox or SetTV have taken things further by selling users tailor-made hardware that provides easy access to live copyrighted content.

Not too surprisingly, video producers and broadcasters haven't much liked this. And in recent months, Amazon and Netflix have joined forces with Hollywood to try and sue many of these operations out of existence. Last week they got a little help from FCC Commissioner Mike O'Rielly, who fired off a letter to both Amazon and Ebay demanding they do more to combat the listing of these devices on their respective websites. O'Rielly was quick to acknowledge that the FCC's authority over copyright is negligible, so he focused instead on these companies' unauthorized use of the FCC logo:

"Disturbingly, some rogue set‐top box manufacturers and distributors are exploiting the FCC's trusted logo by fraudulently placing it on devices that have not been approved via the Commission's equipment authorization process. Specifically, nine set-top box distributors were referred to the FCC in October for enabling the unlawful streaming of copyrighted material, seven of which displayed the FCC logo, although there was no record of such compliance. Many of these sellers are attempting to distribute their non-compliant products through online marketplaces such as yours. Although outside the jurisdiction of the Commission, it is equally troubling that many of these devices are being used to illegally stream copyrighted content, exacerbating the theft of billions of dollars in American innovation and creativity.

And that's all well and good. Companies like DragonBox are dressing up piracy as a legitimate service while illegally using the FCC logo. Both Amazon and Ebay responded to O'Rielly noting they already have numerous systems in place to prohibit the sale of such devices, and were open to working with the FCC to police future sales.

That said, O'Rielly fails to mention that he's historically supported policies at the FCC that make this whole problem worse than it needs to be.

Again, Kodi itself is perfectly legal. And even in the case of more ethically-dubious services, users are flocking to them because they find traditional video services and hardware to be locked down, inflexible, and expensive. Much of that has to do with obnoxious DRM that more often than not makes the viewing experience annoying as hell. And a lot of it has to do with the cable industry's monopoly control over the cable box, which prevents the entire ecosystem from being as open and competitive as it should be.

And O'Rielly himself played a pretty major role in that.

Last year, O'Rielly helped the cable & broadcast industry crush a plan to bring much-needed openness and competition to the cable box. That plan, developed under the Wheeler FCC, would have let consumers access all cable TV content entirely via app, eliminating the traditional cable box and opening up competition on the streaming hardware front. But thanks to an absolutely massive disinformation effort by the cable industry, the plan was killed. Among other things, the cable sector tried to claim that added TV hardware competition would have stifled innovation, encouraged piracy, and even harmed minorities.

None of it was true, but it was repeated ad nauseum in countless editorials nationwide that failed to disclose the authors' ties to the cable sector. The industry even managed to get the Copyright Office to join the fun by claiming that this added competition would somehow violate copyright.

It was another perfect example of how the definition of copyright is routinely abused, and these issues often have to do more with control than copyright. And while it's great that O'Rielly decided to lend a hand here, it might be cool if he realized how his own anti-innovation policies at Trump's FCC have helped make this problem of his immeasurably worse. If traditional video markets were cheaper, more open, customizable and flexible, these kinds of alternatives wouldn't be nearly as popular in the first place because consumers would already be getting what they're looking for.

Filed Under: competition, copyright, fcc, kodi boxes, mike o'rielly, set top boxes
Companies: amazon, dragonbox, ebay, netflix

FCC Claims Perfectly-Timed Regulatory Handout To Sinclair Is Just Quirky Happenstance

from the total-coincidink dept

The FCC remains under heavy fire for its mindless assault on popular net neutrality protections. But the agency has also been facing widespread, bipartisan criticism for the FCC's decision to gut decades-old media consolidation rules -- specifically to help Sinclair Broadcast Group cement its $3.9 billion acquisition of Tribune.

Like net neutrality, media consolidation rules traditionally enjoy bipartisan support because they protect local opinion diversity and speech, preventing one company from dominating smaller competitors. The Washington Post recently offered a piece highlighting the very real, negative impact mindless M&A mania in the broadcast sector has had on the quality and diversity of local news, which in many towns is now little more than an echo chamber of substandard drivel:

"The TV news has a familiar feel to it here in west-central Pennsylvania. News stories broadcast on WJAC, the NBC affiliate in town, have appeared on nearby station WATM, the ABC affiliate. And many of those stories are broadcast on WWCP, the Fox station here, as well. Not just the same topics — identical stories, reported by the same reporter or anchor, and repeated, almost verbatim at times, by the other stations."

The Sinclair merger will give the company ownership of more than 230 local broadcast stations, reaching 73% of the public. Given Sinclair's history of reporting that's factually-dubious on a good day, those concerns are looming larger than ever as the recent viral Deadspin video made abundantly clear:

As Sinclair moved to gain regulatory approval for its latest deal, the FCC quickly moved to block any and all regulatory obstacles. Like eliminating a "main studio rule" requiring that a broadcaster actually have a physical local presence in a city it operates in to help ensure a vested interest in local issues. And when the Sinclair merger began to bump up against a longstanding media rule preventing any one local broadcaster from reaching more than 39% of households, the FCC quickly restored a discarded regulatory loophole known as the UHF discount, letting Sinclair falsely under-state its real household reach to slink in under the cap.

The FCC's regulatory attack on media ownership rules to aid Sinclair was so blatant, it resulted in the FCC inspector general launching an investigation into whether FCC boss Ajit Pai corruptly coordinated the assault with Sinclair executives. There's really no doubt among Pai's fellow Commissioners like Jessica Rosenworcel, who made her thoughts on the matter perfectly clear recently:

"Every element of our media policy is custom-built for the business plan of Sinclair Broadcasting,” says Rosenworcel. “That is stunning, it is striking, and it looks like something’s wrong. And I’m not the only one to think that. We’re burning down the values of media policy in this agency in order to service this company."

Amusingly, FCC Commissioner Mike O'Rielly (fresh off of a recent Hatch Act violation) recently tried to fire back with a blog post claiming that nearly a dozen perfectly-timed initiatives that help Sinclair were all entirely coincidental, and were simply part of the FCC's attempt to eliminate "outdated regulations":

"Any benefit to Sinclair was residual and non-intentional. At the same time, the entire debate misses the bigger picture that I witnessed firsthand in Arizona this week: that the changing marketplace is causing tremendous challenges to legacy broadcasters forced to abide by outdated and irrelevant ownership limitations and Commission rules. My priority has been to remove these outdated burdens imposed by the Commission that no longer serve the public interest or make sense, so that broadcasters are able to survive and thrive in the current competitive landscape. "

Like net neutrality, FCC evidence of the "burden" these longstanding rules create for broadcasters is utterly absent. And the only thing the 39% ownership cap was a burden to was Sinclair and its merger. That the elimination of this rule might also help a few lumbering giants grow impossibly larger isn't really much of a defense, and critics find the timing just too perfect for O'Rielly's claims to be even remotely believable:

“Everything that Sinclair needed to get done seemed to happen exactly when they needed it to get done,” David Goldman, chief counsel for communications issues for the House Energy & Commerce Committee told Motherboard in a phone interview...

"O'Rielly can say this is all just part of the current majority’s plan to deregulate everything under the sun, without regard for who benefits the most, but that's missing the point,” argeed Matt Wood, Policy Director for Free Press, one of the organizations fighting the merger. "Sinclair couldn't even contemplate its massive takeover of Tribune without this relief, which the Commission has been exceptionally eager to grant from day one of Pai's Chairmanship,” Wood said.

Pai's office is rushing ahead undaunted, last week opening the merger back up to public comment in the hopes of nudging things along. The FCC is rushing, in part, because of the fact that consumer groups are challenging the restoration of the UHF Discount in court, arguing that there was no other reason to restore the obscure and unnecessary loophole aside from helping Sinclair. Again, the FCC's decision to barrel forth before the court case is settled didn't sit well with Rosenworcel:

Does it? We'll see. Should consumer advocates win that suit, Sinclair's merger (at least as written) will be DOA, and the FCC will be left trying to find other "entirely coincidental" ways to try and rubber stamp the broadcasting giant's M&A ambitions.

Filed Under: ajit pai, corruption, fcc, media consolidation
Companies: sinclair broadcasting

No, The FTC Is Not Going To Do A Good Job Policing Net Neutrality

from the this-does-not-end-well dept

We've noted repeatedly how broadband ISPs aren't just trying to kill net neutrality, they're trying to kill nearly all state and federal oversight over giant telecom monopolies entirely. From language buried in the net neutrality repeal aimed at preventing states from protecting consumers, to attempts to neuter the FCC and shovel all remaining oversight to an FTC ill-suited to police telecom operators, the end goal really is little to no real oversight of some of the least liked, least competitive companies in any industry.

While this is all being portrayed as "regulatory modernization" by ISPs and their armies of consultants and allies, former FCC Boss Tom Wheeler has gone so far as to call the effort a "fraud." Wheeler was quick to note that not only does the FTC lack rule-making authority, it can only act against an ISP if it can be very clearly shown that the ISP's actions were "unfair or deceptive." That's tricky to do in the net neutrality era where anti-competitive behavior is often disguised as "reasonable network management."

The ISP narrative being parroted about is that the FTC is somehow better suited to police net neutrality than an FCC custom-built by Congress for the purpose. But that's patently false, and as Wheeler noted in an interview last year, ISPs know that shifting oversight authority from the FCC to FTC will leave ISPs lost in the regulatory wash (which is the entire purpose of their gambit):

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

Wheeler's warning was ignored and as of June 11 (net neutrality's formal death date, for now), this is the agency that's going to be tasked with holding AT&T, Comcast, Charter and Verizon accountable to the public. Meanwhile Andrew M. Smith, the man being appointed to head the FTC consumer protection division tasked with enforcing what's left of net neutrality (read: nothing) isn't exactly instilling confidence:

"The new director of the Federal Trade Commission’s consumer protection unit, a watchdog with broad investigative powers over private companies, stands out even in an administration prone to turning over regulatory authority to pro-industry players...in 2012, Mr. Smith was also part of the legal team that defended AMG Services, the payday lender founded by the convicted racketeer Scott Tucker, whose predatory practices against impoverished borrowers eventually led to a $1.3 billion court-ordered settlement, the biggest in the commission’s history.

“It’s outrageous the F.T.C. would pick the lawyer for a criminally convicted racketeer’s payday loan company as consumer protection chief,” said Senator Elizabeth Warren, Democrat of Massachusetts, who opposed Mr. Smith’s selection. “The agency should pick someone with a track record of protecting consumers, not companies that cheat people."

And while it's true that a lawyer isn't defined by who he or she represents, it also remains pretty clear that Smith has zero experience protecting consumers or startups, making him a dubious selection for the job. And given his laundry list of past employment for companies ranging from Uber and Equifax (who he defended during their recent privacy kerfuffle), he's going to have to recuse himself from a long list of decisions at the FTC, which also doesn't make him a particularly compelling hire.

It shouldn't take a doctoral degree to understand how this massive regulatory paradigm shift ends badly for consumers, startups, and the health of the internet. And this is all before you realize that AT&T is currently in court trying to argue that the FTC has no authority over monopoly ISPs whatsoever, something ISPs (and their list of pay to play allies) just kind of conveniently omit when talking about how the FTC is perfectly suited to help protect the open internet and the would-be competitors of tomorrow.

Filed Under: andrew smith, broadband, consumer protection, fcc, ftc, regulation

Senators Ask FCC Why It Did Nothing To Stop Their Names From Being Fraudulently Used During Net Neutrality Repeal

from the fake-plastic-trees dept

Last year you'll recall that somebody abused the nonexistent privacy protections at the FCC website to flood the net neutrality repeal proceeding with millions of fake comments. While the vast majority of real people oppose the repeal, a bad actor was able to either fraudulently use the identities of real people (like myself), or hijack the identities of dead people to spam the proceeding with bogus support. The goal: undermine public trust in the public comment period in order to downplay the massive opposition to the FCC's handout to AT&T and Comcast.

Up to this point, the FCC has done less than nothing to investigate the fraud or prevent it from happening again, largely because it aided the FCC's agenda. In fact, the FCC went so far as to block a law enforcement investigation into who was behind the fraud.

Hoping to pull the scandal back onto a front burner, Senators Jeff Merkley and Pat Toomey this week sent a letter to the FCC stating that they've discovered that their names were also used to post fake comments during the repeal. The two demanded the FCC implement some kind of CAPTCHA system to help police automated bogus comments (a bot seems to have posted millions of bogus comments in alphabetical order), and asked what the agency was doing to prevent the problem from occurring again:

"Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission’s (FCC’s) comment period for the net neutrality rule,” the Senators wrote in a letter to Pai. “We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process."

The FCC has been hammered for months over this scandal and has responded with the policy and regulatory equivalent of a shrug. I was told by the agency that there was nothing that could be done after my own identity was fraudulently used to support the repeal. So far, there's been absolutely no repercussions for the FCC or its staffers, though a GAO investigation is currently ongoing. It's worth noting that this kind of behavior isn't exclusive to the FCC, with other Trump regulatory actions also being hammered with bogus support via bot over the last year.

Filed Under: ajit pai, comments, fake names, fcc, jeff merkley, net neutrality, pat toomey, senate

Charter Uses Net Neutrality Repeal To Claim States Can't Hold It Accountable For Shoddy Service, Failed Promises

from the zero-accountability dept

While people remain exclusively fixated on the telecom industry's attacks on net neutrality, the reality is companies like Comcast, Charter, AT&T and Verizon are busy trying to eliminate nearly all federal and state oversight of their businesses. And while deregulation has its uses in healthy markets as part of an effort to protect innovation, you may have noticed that the telecom market isn't particularly healthy. As such, the end result of eliminating most meaningful regulatory oversight without organic market pressure in place is only likely to make existing problems worse.

This battle is getting particularly heated on the state level. After the Trump administration dismantled net neutrality and consumer privacy protections, states began flexing their muscle and attempting to pass their own privacy and net neutrality rules. ISP lobbyists, in turn, tried to head those efforts off at the pass by lobbying the FCC to include (legally untested) language in its net neutrality repeal "pre-empting" states from being able to protect broadband consumers in the wake of federal apathy.

And in the wake of the net neutrality repeal, companies like Charter (Spectrum) are trying to claim that states have no legal authority to hold them accountable for failed promises, slow speeds, or much of anything else.

For example, Charter is already trying to use the FCC net neutrality language to wiggle out of a lawsuit accusing it of failing to deliver advertised speeds. And the New York Public Service Commission also recently stated it found that Charter has been effectively lying to regulators about meeting conditions affixed to its $89 billion acquisition of Time Warner Cable and Bright House Networks. As part of the deal, Charter was supposed to deploy broadband to a set number of additional homes and businesses, but regulators found (pdf) several instances where Charter actively misled regulators.

Last week Charter replied to these allegations by again claiming that states have no authority over them. As part of that effort the company is already citing the FCC's pre-emption language buried in its net neutrality repeal:

"The Commission does not have the authority to compel broadband providers to offer service to particular customers at particular speeds or at particular locations, or to establish any other obligations in a cable television and telecommunications service merger related to the provision of broadband services. Indeed, it has been established for years that Internet access services are interstate, and accordingly subject to exclusive federal jurisdiction.

The FCC has made abundantly clear that states may not impose “any so-called ‘economic’ or ‘public utility-type’ regulation[]” on broadband services and that federal law flatly preempts such requirements. Requiring a provider to expand the geographical range in which it offers broadband services and to offer it at specific speeds—as the Expansion Condition does—is a quintessential public utility obligation that could never lawfully be imposed by a state, as such a requirement would blatantly violate federal law.

There's several things wrong with this claim. One, NY State and the NY PSC absolutely does have authority over Charter -- because this is a merger agreement signed off on by the company that also currently holds a franchise agreement in the state. Two, the FCC's pre-emption effort was already on shaky and untested legal ground. But as Stanford Law School Professor Barbara van Schewick recently pointed out, ironically when the Ajit Pai's FCC rolled back Title II classification of ISPs, it also abdicated its own authority allowing it to tell states what they can do:

"While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

Still, it will take years to hammer this all out in the courts, and in the interim efforts to erode oversight on numerous other fronts (as we saw on net neutrality and privacy) has so far been a smashing success. As we've already noted several times, cable operators like Charter are enjoying larger broadband monopolies than ever before thanks to telcos that have no interest in upgrading aging DSL lines at scale. If you really enjoy the high prices and comical shitshow that passes for cable customer service, by all means let's make sure nobody on the state or federal level can ever hold them accountable.

Filed Under: fcc, net neutrality, new york, oversight, state laws
Companies: charter