The GAO Says It Will Investigate Bogus Net Neutrality Comments, Eventually

from the fake-people-real-problems dept

The General Accounting Office (GAO) says the agency will launch an investigation into the fraud that occurred during the FCC's rushed repeal of net neutrality rules. Consumers only had one real chance to weigh in during the public comment period of the agency's misleadingly-named "Restoring Internet Freedom" proposal. But "somebody" paid a group or individual to fill the comment period with bogus comments from fake or even dead people, in a ham-fisted attempt to downplay massive, legitimate public opposition to the plan.

The FCC then blocked a law enforcement investigation into the fraud, refusing to hand over server logs or API key data that could easily disclose the culprit(s). FOIA requests and public requests for help (one coming from myself) were also promptly ignored by the Trump FCC.

To help speed things along, the GAO says it will launch an investigation into the bogus comments and the FCC's response to them, though they warn in a letter that it may be at least five months before they have the staff and resources for such an inquiry:

"Thank you for your letter, jointly signed by a number of your colleagues, requesting that the Government Accountability Office review the extent and pervasiveness of fraud and the misuse of American identities during federal rulemaking processes. GAO accepts your request as work that is within the scope of its authority. At the current time we anticipate that staff with the required skills will be available to initiate an engagement in about five months."

The GAO is also currently investigating apparently bogus claims by the FCC that it suffered a malicious "DDOS attack" the same day HBO's John Oliver drove millions of frustrated citizens to the FCC website to chime in on its blatant hand out to the telecom sector. Both the fake comments and the fake DDOS attack appear to be an attempt to undermine trust in the millions of consumers viciously-opposed to the FCC's plan. Both will also play a starring role in the numerous lawsuits headed the FCC's direction for its blatant disregard of the public interest.

If the GAO or these lawsuits can prove the FCC ignored agency guidelines and the Administrative Procedure Act in its rush to cuddle up to AT&T, Verizon and Comcast, the agency's repeal could prove short lived. That's a major reason why ISPs like Comcast and AT&T are pushing hard for new fake net neutrality legislation that would codify federal apathy into law, pre-empting federal and state efforts to restore the rules--or craft tougher restrictions down the road.

Filed Under: fake comments, fcc, gao, net neutrality

Apple's Incoherent App Approval Process Strikes Again, Net Neutrality App Banned For No Real Reason

from the you're-not-helping dept

By now Apple's app-store approval process is legendary for being completely untethered from anything even vaguely resembling consistency, accountability, or transparency. App makers can often find their passion projects banned for no coherent reason whatsoever, or because the app in question competes with Apple's own offerings. The process of complaining is traditionally semi-Sisyphean, with Apple often refusing to adequately explain their decisions. And it's inconsistent; banned apps and games can often reappear with no concrete explanation as well.

The latest case in point: David Coffnes, a researcher at Northeastern University, recently built an app named Wehe to help broadband users test their connections for possible throttling or net neutrality violations. But the app in question was banned by Apple for no coherent reason, the company simply telling Coffnes that his app "has no direct benefits to the user," and contained "objectionable content," neither of which is true:

"An Apple App Store reviewer told Choffnes that “your app has no direct benefits to the user,” according to screenshots reviewed by Motherboard. According to Apple’s reviewer, the app contained “Objectionable Content,” a catch-all for apps that Apple doesn’t want to let into its App Store. Apple is blocking the app and no one is quite sure why, including Choffnes; neither Apple nor Verizon responded to requests for comment for this article."

Coffnes, who is paid by ISPs like Verizon to test their own network video performance, is collecting data on how ISPs manipulate data to manage video on their networks, a practice that's increasingly common as ISPs increasingly test the boundaries of net neutrality (or, as is now the case, the lack thereof) and good taste. Coffnes' app simply connects to and analyzes data throughput from seven apps: YouTube, Amazon, NBCSports, Netflix, Skype, Spotify, and Vimeo. It then reports if the ISP you're using is somehow manipulating or throttling back network speeds as an effort to provide some layer of transparency to the end user.

Neither Apple nor Verizon were willing to comment about the apparently arbitrary ban, raising obvious questions about transparency. These sort of tools are, it should go without saying, going to be important as the government increasingly makes it clear it has zero real intention of protecting consumers from lumbering, predatory telecom duopolies eager to abuse a lack of sector competition for additional financial gain. With government now sitting on its hands in fealty to telecom providers, the onus is on the consumer to do due diligence regarding their own connections.

According to FCC boss Ajit Pai, public shame alone is supposed to help hold ISPs accountable in the wake of federal apathy to the net neutrality violations caused by a lack of broadband competition:

"Most attempts by ISPs to block or throttle content will likely be met with a fierce consumer backlash … in the event that any stakeholder [ISP] were inclined to deviate from this consensus against blocking and throttling, we fully expect that consumer expectations, market incentives, and the deterrent threat of enforcement actions will constrain such practices."

Right. But it's a little hard to do that when you lack the choice of an alternative provider, or the ISPs that are available aren't clear about their network management practices, something net neutrality rules required. There's certainly plenty of legitimate network management practices, but just as often network management can be used as an anti-competitive weapon. Determining which is true requires the help of researchers like Coffnes, and Apple's adding another layer of non-transparency to the equation by banning useful consumer tools and apps for (once again) no coherent reason.

Update: As we've seen in previous instances of Apple's bizarre app store approval process, the company has backed off the blockade, but has failed to explain what resulted in the app being banned in the first place:

"The conversation was very pleasant, but did not provide any insight into the review process [that] led the app to be rejected in the first place," Choffnes told us in an email."

Filed Under: app store, arbitrary, fcc, net neutrality
Companies: apple

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

Senate Push To Save Net Neutrality Needs Just One Vote, But You Still Shouldn't Get Your Hopes Up

from the reverse-the-reversal dept

A Congressional effort to reverse the FCC's attack on net neutrality needs just one vote to move forward, but still faces a very steep uphill climb toward success. Fifty senators have endorsed a legislative measure to use the Congressional Review Act to reverse the FCC's repeal of the rules. The CRA can be used to reverse any regulatory action with a majority vote in Congress, provided the vote occurs within 60 days of the regulatory action in question. With 49 Democrats and one Republican (Maine's Susan Collins) now supporting the effort, it needs just one Republican vote to forward, notes Senator Ed Markey:

"Momentum is building,” Sen. Ed Markey (D-MA) told reporters at a Boston press conference on Tuesday. "There will be a vote on the floor of the U.S. Senate to restore net neutrality as the law of the land,” Markey said. Under the Congressional Review Act it takes just 30 votes to bring a resolution to a vote and there would be a “price to pay” for lawmakers to side with the FCC. “Access to a free and open internet is and should be a 21st right—net neutrality forms the foundation of both our democracy and our economy."

The chance of this gambit's success have been consistently and routinely over-hyped by the well intentioned. Should the effort pass the Senate it still needs to secure floor time and win a vote in the House, where lawmakers like Marsha Blackburn have pretty routinely made protecting AT&T, Verizon and Comcast revenues their very top priority. Pennsylvania Representative Mike Doyle issued a statement listing the supporters currently signed on in the House, though that support remains well short of the threshold needed to run the gauntlet of ISP-beholden lawmakers there:

"We’ve made good progress so far in getting Members to sign on as original cosponsors of our bill to restore Net Neutrality, and I will continue to seek additional cosponsors in the weeks ahead,” Congressman Doyle said today in releasing the list of names. “There’s overwhelming public support for preserving Net Neutrality, so it’s no surprise that there’s strong support in Congress as well. I’m confident that if there’s enough public pressure, Congress will overturn the FCC’s order killing net neutrality."

Unlike the Senate, there's no rule that lets a minority of members force a vote, meaning even getting floor time could prove problematic. House supporters could use a discharge petition to bring a vote, but it would require a majority of members (218) to force a vote on the issue. Given this is the same House where members of both parties consistently trip over themselves to give sloppy kisses to AT&T, Verizon and Comcast, this could prove a tall order. Expectations should be in line with this reality.

If the effort gets through the House it would still need the signature of President Donald Trump. Activists I've talked to hope that should it get past Congress, Trump's tendency to bend whichever way the "populist" wind is blowing could get him to sign off on the proposal. But giving such a notable middle finger to his own FCC would be uncharacteristic given all the ISP money being spent on gutting all meaningful state and federal oversight of incumbent ISPs, and there will be plenty of well-funded pressure to ensure that doesn't happen.

While success here has long odds (though this shouldn't discourage you from contacting your lawmaker anyway), the gambit does have the practical purpose of forcing AT&T, Verizon and Comcast's lackeys in both houses to put their disdain for the public down on the public record. That's going to prove particularly useful during the looming midterms, where net neutrality is very quickly becoming a wedge issue. That's especially true among Millennial voters, who seem to have a more innate understanding of why letting Comcast run amok isn't a particularly great idea.

The entire effort again highlights the stupidity of viewing net neutrality through a partisan lens. Despite a healthy, competitive internet being in everybody's best interest, ISPs have spent fifteen years successfully framing net neutrality as a partisan issue to help sow dissent and stall progress on meaningful rules. Survey after survey however have indicated that the concept has broad, bipartisan support among the public at large. Anger at being ignored will drive voter turnout, and lawmakers (as well as Ajit Pai, whose post-FCC political ambitions couldn't be clearer) are going to figure that out the hard way.

All of that said, there's still plenty of ways to bring net neutrality back to the table should this effort fail. While it will take a while, the looming lawsuits have a solid chance at reversing the FCC's repeal given the FCC's numerous procedural and ethical missteps. A massive shakeup in Congress could also finally drive support for a real net neutrality law down the road, provided ISPs aren't successful in passing their own, entirely bogus legislation first.

Filed Under: congress, fcc, house, net neutrality, senate

22 State Attorneys General File Suit Against The FCC For Its Net Neutrality Repeal

from the legal-fisticuffs dept

The legal fight over the FCC's historically unpopular decision to kill net neutrality has begun. An announcement by New York Attorney General Eric Schneiderman's office indicates that 22 State Attorneys General have filed suit against the FCC. The AGs says the multi-state coalition has filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, the first of what's expected to be numerous lawsuits in the weeks and months to come.

The announcement makes it clear the suit intends to focus on the FCC's potential violation of the Administrative Procedure Act. Under the Act the FCC will need to prove that the broadband market changed so substantially since the passage of the original rules in 2015 to warrant such a stark reversal (tip: it didn't). Under the Act, a decision can be declared "arbitrary and capricious" (Ajit Pai's agenda is undeniably both) if the regulator in question can't prove such a dramatic change, which is why you've watched industry lobbyists and their BFF Pai routinely and falsely claim that the modest rules somehow devastated sector investment.

Schneiderman quite correctly documents the potential pitfalls of gutting meaningful oversight of some of the least-competitive companies in America:

"An open internet – and the free exchange of ideas it allows – is critical to our democratic process,” said Attorney General Schneiderman. “The repeal of net neutrality would turn internet service providers into gatekeepers – allowing them to put profits over consumers while controlling what we see, what we do, and what we say online. This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet. That’s why I’m proud to lead this broad coalition of 22 Attorneys General in filing suit to stop the FCC’s illegal rollback of net neutrality."

You'll recall that Schneiderman's office is also conducting an investigation into who's behind the flood of bogus comments filed during the public comment period of the FCC's repeal order. Millions of the bogus comments were clearly filed by some group or individual hoping to erode trust in integrity of the comments in the hopes of downplaying massive public opposition to the FCC's plan. When Schneiderman's office contacted the FCC to get some help identifying the culprits the FCC refused nine different times over a period of five months, according to an open letter to the FCC by Schneiderman late last year.

Numerous lawsuits are expected to follow once the FCC's repeal hits the Federal Register (expected in the next month or so).

All of these suits will highlight the numerous instances of FCC incompetence or fraud, ranging from the fake DDoS attack the FCC apparently manufactured to downplay the John Oliver effect, to why the FCC turned a blind eye while somebody stole the identity of dead people to forge bogus support for the FCC's agenda. Also likely to be highlighted is how the FCC ignored the public, ignored the experts, ignored the industry's startups, and used bogus lobbyist data to prop up what may just be the least popular tech policy decision in the history of the modern internet.

Filed Under: administrative procedures act, ajit pai, arbitrary and capricious, eric schneiderman, fcc, lawsuit, net neutrality

After Being AWOL From The Fight For Years, Google & Facebook To Fund Lawsuits Over Net Neutrality

from the fashionably-late dept

Not surprisingly, the Internet Association has stated that the organization intends to participate in the looming lawsuits against the FCC for its repeal of net neutrality. The group, which represents countless tech companies including Google, Amazon, Facebook, Etsy and more, stated that the organization will not only participate in the coming lawsuits (which should arrive shortly after the repeal hits the Federal Register), but would support a "legislative solution" to help make net neutrality permanent (though as we've noted, folks should be careful on that front):

"The final version of Chairman Pai’s rule, as expected, dismantles popular net neutrality protections for consumers. This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet. IA intends to act as an intervenor in judicial action against this order and, along with our member companies, will continue our push to restore strong, enforceable net neutrality protections through a legislative solution."

To be clear, that's a good thing. These upcoming lawsuits, which will focus on the FCC's blatant disregard for objective data and public interest, are going to need all the help they can get. Said suits will focus extensively on how Ajit Pai and the FCC ignored the nation's startups, the people who built the internet, and any and all objective data as it rushed to give a sloppy, wet kiss to the nation's entrenched telecom monopolies.

That said, several IA member companies' dedication to net neutrality has been anything but consistent. Google, while often touted as a "net neutrality advocate," hasn't truly supported the concept since 2009 or so. As the company pushed into fixed (Google Fiber) and wireless (Project Fi, Android) broadband, its interest in rules that truly protected consumers from duopoly market abuse in the sector magically disappeared. And Google worked with AT&T and Verizon to help craft FCC net neutrality protections in 2010 that were so packed with loopholes as to be largely useless (they didn't even cover wireless networks).

Other IA members like Facebook have actively worked to undermine net neutrality overseas as they attempt to corner the ad market in developing nations. Facebook received ample criticism for its behavior in India specifically, when the company tried to trick citizens into supporting Facebook's push for a zero-rated walled garden platform dubbed "Free Basics." India ultimately banned such zero rating efforts under its own net neutrality rules, supporting Mozilla's position that if Facebook is so concerned about the Indian poor, it should help fund access to the entire internet -- and not just a Facebook-curated walled garden.

Even Netflix, perhaps the most vocal and deep-pocketed support of net neutrality, has softened its position on the subject as it has grown more powerful. Company CEO Reed Hastings recently proclaimed that network neutrality was SOP (somebody else's problem) now that the company is large enough and wealthy enough to fight off anti-competitive behavior by the likes of AT&T, Verizon and Comcast:

"The Trump FCC is going to unwind the rules no matter what anybody says,” Hastings argues. He might believe that net neutrality is “important for society," but his company, Netflix, isn’t in trouble so it’s not going to get into the fight. “We had to carry the water when we were growing up and we were small," Hastings said. "Other companies have to be on that leading edge."

That's a painfully myopic read of the situation, and one Netflix has been forced to walk back from after ample criticism for its tone-deafness. Or at least, the company has been more vocal about its "support" of net neutrality on Twitter, for whatever that winds up being worth in the face of AT&T, Verizon and Comcast lobbying muscle.

All of that said, the IA has a broad roster of countless smaller members, like Etsy, who have been perfectly consistent about their support for net neutrality. That support remains completely intact, according to a statement released by the company:

"The FCC’s decision to overturn net neutrality rules was deeply disappointing for those of us who have fought so hard for the strong protections that enable millions of microbusinesses to start and grow online. Under the FCC’s new proposal, millions of small business, like Etsy’s 1.9 million sellers, could find themselves in the internet slow lane or blocked altogether."

Again, it's great that some of Facebook, Google and Netflix's money will be used to help fund the fight against the repeal. But if these Silicon Valley giants hadn't decided to take a nap during this latest fight to protect the rules, we might not be in this position in the first place.

Filed Under: fcc, lawsuits, net neutrality
Companies: facebook, google, internet association

Nebraska The First 'Red' State To Craft Its Own Net Neutrality Law

from the the-people-have-spoken dept

So we've noted repeatedly how the attack on net neutrality is just one small part of a much larger, dumber plan by major ISPs to neuter nearly all federal and state oversight. A plan that involves gutting all meaningful FCC authority over broadband ISPs, then shoveling any remaining authority to the FTC. An FTC (surprise surprise) the broadband industry is currently in court arguing has no authority over broadband providers. Ajit Pai's FCC (at Verizon and Comcast lobbyists' request) also included provisions pre-empting states from trying to protect consumer privacy or net neutrality.

So far individual states aren't listening. New York, Washington, Minnesota, Massachusetts and California are all pushing their own net neutrality rules. And since the FCC's net neutrality repeal prohibits states from passing such laws, many of these states are creatively eyeing provisions that require ISPs adhere to net neutrality if they want to win government contracts, or if they want to keep getting taxpayer subsidies for those fiber networks they always tend to leave half built anyway.

ISP lobbyists have already begun trying to argue that these individual state efforts create a discordant patchwork of regulations that may be difficult to adhere to. But that's the sort of thing said lobbyists should have thought about before rushing mindlessly to destroy federal net neutrality rules. Rules that were actually among the more modest of any of the developed nations that have passed such protections (see The Netherlands, India, Japan, Canada, Germany).

Nebraska has now added itself to the list of states stepping up to the plate in the wake of federal consumer apathy. State Senator Adam Morfeld has introduced LB 856 (pdf), which would restore the federal net neutrality rules on the state level, and prevent ISPs from "limiting or restricting access to web sites, applications, or content." Speaking to his hometown newspaper, Morfield expressed surprise at the volume of bipartisan feedback he received in the wake of the FCC's decision:

"For me, this is an economic development and consumer protection bill,” Morfeld said. “The internet drives the economy now and it’s critical people have open and fair access to the internet. I knew I was passionate about it, but I was shocked at the support I received from Republicans, from Democrats and Libertarians," he said.

He shouldn't be surprised. Survey after survey (including some from the industry itself) show that net neutrality has broad, bipartisan support among consumers. One recent poll indicated that 83% of Americans opposed the FCC's handout to the telecom sector. The fact that the FCC ignored this support in its rush to repeal the rules will be playing a starring role in the looming lawsuits awaiting the agency later this year.

Whether Nebraska's law will be preempted by FCC authority is something else the courts will have to hash out, especially since the FCC has had its wrist slapped for overreach in the past when it has tried to preempt state authority on matters of broadband. ISP lobbyists (and the countless think tankers, lobbyists, consultants and academics paid to love them) express breathless adoration of "states rights" when states are criticized for passing anti-competitive state laws, but when those same states actually try to protect consumers and small businesses, you'll notice that this adoration of states rights magically disappears.

Filed Under: fcc, nebraska, net neutrality, states rights