Court Says FCC Can't Stop States From Protecting Net Neutrality

from the ill-communication dept

Today a federal appeals court delivered a decidedly mixed decision in the FCC's ongoing quest to kill net neutrality and telecom sector oversight. On the one hand, the new 2-1 ruling by the US Court of Appeals for the District of Columbia Circuit backs much of the FCC's Orwellian-named "Restoring Internet Freedom" order, which not only repealed the FCC's 2015 net neutrality rules, but gutted much of the agency's authority over broadband providers. That decision shoveled any remaining telecom oversight to an FTC that experts say lacks the authority or resources to actually police giants like AT&T, Verizon, and Comcast (the whole point).

But the ruling wasn't without a few notable catches. The court was quick to kick several aspects of the agency's order back to the FCC for revision. The court noted the FCC failed completely to explore how the repeal would harm public safety and efforts like the FCC's Lifeline program, which doles out a modest $9 monthly subsidy to low-income users to be used on wireless, phone, or broadband service (they have to choose one). Pai's been trying to undermine this Reagan-era program for several years, so the fact his FCC didn't think about the impact gutting FCC authority would have isn't surprising.

The biggest part of the court's ruling is that it shot down the FCC's attempt to stop states from protecting net neutrality. In the wake of the FCC's repeal, 29 states have proposed their own state-level net neutrality rules, one of the biggest reasons ISPs haven't been pushing their luck. Some of these efforts, like California's SB822, actually go further than the FCC's 2015 rules did in policing things like zero rating (ISPs using usage caps as an anti-competitive weapon, something they're already doing).

But the court found that if the FCC is going to void its authority over ISPs, it can't then turn around and try to pre-empt states from protecting consumers themselves:

"We uphold the 2018 Order, with two exceptions. First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission “repealed or decided to refrain from imposing” in the Order or that is “more stringent” than the Order. 2018 Order ¶ 195. The Court accordingly vacates that portion of the Order. Second, we remand the Order to the agency on three discrete issues: (1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program.

ISPs have, and will continue to, whine incessantly about the perils of having to adhere to dozens of state-level net neutrality laws, but that's a problem of their own making. While large ISPs (and the Pai FCC) have tried to frame the FCC's 2015 rules as hugely draconian and restrictive, in reality they were fairly modest by international standards. And while the Trump DOJ (now not coincidentally run by former Verizon General Counsel Bill Barr) sued California for trying to protect consumers, this new ruling will likely complicate those efforts.

The court ruling supporting the majority of the FCC's repeal remains a bit surprising. Under the Administrative Procedure Act, a regulator has to base major policy decisions on solid justifications and hard data. But the FCC not only failed utterly to show that industry changes warranted such a reversal, its primary justification for repeal (that net neutrality rules stifled industry investment) has been repeatedly proven false. In reality the FCC effectively neutered itself at the behest of largely predatory telecom monopolies, at times using outright fraud to accomplish the goal. And so far, our courts are cool with it, apparently feeling constrained by previous Brand X court declarations (something made clear by Judge Patricia Millett):

"I join the Court's opinion in full, but not without substantial reservation. The Supreme Court's decision in [the Supreme Court's Brand X decision] compels us to affirm as a reasonable option the agency's reclassification of broadband as an information service based on its provision of Domain Name System ("DNS") and caching. But I am deeply concerned that the result is unhinged from the realities of modern broadband service."

No shit. A good chunk of the ruling goes well out of its way to support the FCC's reasoning, especially as it relates to the FCC contention that the broadband sector is competitive (if you're new to US telecom, it's not):

So yeah. As usual, what the courts declare to be valid, and what's actually intellectually and ethically valid are entirely different things. While you'll see a lot of bickering over the legalese in this decision, don't forget what really happened here: telecom lobbyists convinced the FCC to effectively neuter itself, using bogus data, massaged economic analysis, and fraud to accomplish it against the will of the the bipartisan majority of the public. And again, the United States legal system, at least up to this point, is largely cool with that.

While the appeals court ruling could still make its way to the Supreme Court (a major reason ISPs backed Kavanaugh), there are still several other paths for net neutrality supporters here. One, the state laws should work to help rein in some of the industry's worst impulses. But the ruling could also foster support for the three page Save The Internet Act, which would fully restore the 2015 FCC rules as an act of Congress. That bill passed the House last year but was blocked by McConnell in the Senate, one of a million considerations up for voter contemplation during the looming elections.

Filed Under: ajit pai, dc circuit, deference, fcc, ftc, lifeline, net neutrality, pre-emption, public safety, states

One More Time: Just Because The Internet Didn't Explode Doesn't Mean Killing Net Neutrality Was A Great Idea

from the feigned-ignorance dept

By now we've well established that the FCC ignored the public, ignored the experts, and ignored all objective data when it killed net neutrality rules at the behest of telecom monopolies.

One common refrain by Pai and and the industry (and many folks who don't understand how the broken telecom market works) is that because the internet didn't immediately collapse upon itself post-repeal in a rainbow-colored explosion, that the repeal itself must not be that big of a deal. That ignores the fact that ISPs are only largely behaving because they're worried about the numerous new state level net neutrality laws passed in the wake of the federal repeal. Not to mention the 23 state AG lawsuit against the FCC (which, if victorious, would restore some or all of the rules).

None of that matters to the Chicago Tribune editorial staff, the latest outlet to proclaim that because your internet connection still works, ignoring the public and letting AT&T, Verizon, and Comcast dictate US federal internet policy must not have been a bad thing:

"The FCC did vote to nix net neutrality, effective June 2018. A year-plus later, broadband download and upload speeds have quickened rather than slowed. Internet providers haven’t bifurcated service into different speeds for rich and poor households. Mobile networks, too, move data more swiftly than before. Broadband investment in better technology again has accelerated. And if baseball fan Chuck Schumer has missed a pitch, blame his bat speed, not his data speed."

Again, this ignores the fact that ISPs don't want to dramatically shift their business models only to run afoul of state regulators. Nor do they want to dramatically start ripping people off, only to have the FCC's 2015 rules suddenly be restored via the AG lawsuit (a ruling in which is expected any day now). Folks writing these kinds of editorials know this. They're just hoping that you don't.

Meanwhile, claims that nothing happened in the wake of the repeal aren't even true. Giants like AT&T have quietly started using broadband usage caps to disadvantage competitors like Netflix. ISPs like CenturyLink have blocked internet access to sling ads. Mobile carriers now charge you more just to stream in HD as intended. And the repeal of net neutrality didn't just kill net neutrality, it eroded the FCC's ability to police the sector, leaving us with revolving door regulators totally unwilling to do anything about numerous sector scandals including the collection and sale of user location data or hurricane recovery failures.

When you can't make your point based on the facts, the trend du jour is to just make up your own facts. In the realm of net neutrality, that usually means falsely claiming that the rules apocalyptically-stifled broadband investment and network upgrades (which has objectively never, ever been true). That doesn't stop the Tribune:

"That silence you hear in response to those two questions is the sound of free-market incentives improving internet services at a steady pace. Companies are competing to increase rather than decrease data speeds. And, thus far, internet providers haven’t adopted exploitative service and pricing policies that would drive angry customers to rival providers in a heartbeat. And if companies do take unfair advantage of life after net neutrality, the federal deregulation can be modified, or reversed by regulators, or overridden by Congress."

So one, the speed increases we've seen in the wake of the repeal are routine and have nothing to do with repealing net neutrality, something the Tribune likely knows, but ignores. Punting to Congress on this issue is also a cop out when Congress is slathered with telecom sector campaign contributions, something else the Tribune knows is true, but ignores. The pretense remains that the FCC's 2015 net neutrality rules (fairly tame by international standards) crushed the vibrant and competitive broadband sector, and again, that, like most of the Tribune's claims, has never been true.

This apparently needs repeating: a telecom regulator ignoring all objective data and neutering itself at the behest of the telecom lobby is a bad thing. Revolving door regulators ignoring the public and gutting essential consumer protections (based on fabricated data) is a bad thing. Government officials turning a blind eye to identity theft and fraud during the one chance consumers had to make their voices heard is a bad thing. Putting natural monopolies with 30 years of anti-competitive behavior under their belts in charge of US telecom policy is a bad thing. It may take a few years for the full negative impact to be seen, but that doesn't make what happened any less of a problem.

If your response to all of this is "gee, who cares, the internet still works for the moment," the only thing you're advertising is your ignorance.

Filed Under: broken internet, fcc, net neutrality
Companies: chicago tribune

FCC Forgets About, Then Dismisses, Complaint Detailing Verizon's Long History Of Net Neutrality Violations

from the with-friends-like-these dept

So a few years ago we wrote about Alex Nguyen, one of the only folks to file a formal net neutrality complaint (pdf) with the FCC. Before the rules were killed, users could file a free complaint, of which there were thousands. But if you wanted to actually have your complaint looked at by the FCC, you needed to pay $225, submit an ocean of paperwork, and kick off a long-train of procedural and legal fisticuffs most consumers simply didn't have time for. But Nguyen took the time, and filed a lengthy complaint outlining how Verizon Wireless had a long history of anti-competitive, restrictive behavior that harmed innovation and competition.

With 300 citations across a 112-page document, Nguyen documented Verizon's ugly history, including banning mobile payment services that competed with Verizon's own payment offerings, blocking tablets from working on its network to promote its own tablets, and even banning devices from using GPS to -- you guessed it -- force subscribers to use the company's own subscription GPS services. Most of these efforts violated not just net neutrality, but the "Carterfone" conditions affixed to Verizon's spectrum to ensure the company would treat all devices and services fairly.

Verizon's long history on this front is fairly indisputable, and the company has never been held seriously accountable for any of it. And while Nguyen hoped he'd be the one to help hold Verizon to account, the regulatory capture in the telecom sector had other ideas.

Nguyen formally submitted his detailed complaint back while the net neutrality rules were still active (July of 2016), so the Pai FCC was mandated to take a look at the complaints. But instead of actually taking the only formal net neutrality complaint made seriously, the Pai FCC (surprise!) forgot completely about it for years. Last week the agency remembered it needed to at least respond, and (surprise!) broadly declared that the complaint lacked any compelling evidence whatsoever:

"[W]e deny Nguyen's Complaint for failure to satisfy its burden of proving by competent evidence that Verizon violated the Act or the Commission's rules or orders," the FCC said. "Rather than support its claims with sworn affidavits from witnesses with personal knowledge of the facts, the Nguyen Complaint rests almost entirely on unverified news reports and blog posts."

Except the FCC's claim (surprise!) isn't true. Nearly all of the complaints documented by "blog posts" can be verified by other formal complaints made with the FCC by a litany of consumer groups, companies, and third parties. Nguyen also documented his accusations extensively using first hand information including his own Verizon Wireless bills. He provided easily-confirmed evidence that Verizon routinely used its position as network gatekeeper to, time and time again, favor its own content, services, and apps. And the FCC has repeatedly made it clear, under both parties, that it doesn't really care.

While the company has slowly improved over the years, Verizon has long tried to claim such restrictions were for the "safety and security" of the network. As in, we blocked mobile tablets from our network for years not to give our own shittier tablets a leg up in sales, but because we were concerned about the "safety and security" of the network. Because the 2015 rules carved out exceptions for such behavior, it's pretty easy for giant ISPs to use safety and security to justify a wide variety of bad ideas. Much in the same way fixed-line ISPs use bogus claims of network congestion to justify arbitrary usage caps and overage fees.

Granted not all of the things Verizon does technically violated net neutrality, but they were still clearly anti-competitive the majority of the time. And if we had even remotely functional oversight of the industry and/or a healthy, truly price competitive market, the company would have been punished ten times over for using its role as network operator to unfairly hamper competitors.

It's worth repeating that the FCC's attack on net neutrality didn't just kill net neutrality. It also eliminated transparency requirements that can help you understand what kind of restrictions exist on your broadband line. Without them, it's going to be easier than ever for ISPs to hide anti-competitive shenanigans in a bevy of fine print. The repeal also greatly weakened the FCC's ability to hold ISPs accountable in other ways, shoveling any remaining authority to an FTC that lacks the competence, authority, or resources to police telecom. Really, what could possibly go wrong?

Filed Under: ajit pai, alex nguyen, complaints, evidence, fcc, net neutrality
Companies: verizon

Killing Net Neutrality Rules Did Far More Harm Than You Probably Realize

from the none-of-this-ends-well dept

We've noted repeatedly that the repeal of net neutrality did far more than just kill popular net neutrality rules. It effectively neutered the FCC's ability to do its job and oversee lumbering natural telecom monopolies. And, contrary to the claims of the telecom lobby, it threw any remaining authority to an FTC that lacks the resources or authority to do the job either. In short the repeal gave loathed telecom giants like Comcast and AT&T carte blanche to do pretty much anything they'd like to their captive customer bases, provided they're marginally clever about it.

Here's one case in point: the previous FCC had passed some fairly basic rules requiring that ISPs be transparent about the kind of connection you're buying. As in, ISPs were required to not only inform you what kind of throttling or restrictions were on your line, but they were supposed to make it clear how many hidden fees you'd pay post sale. With those rules dead, the FCC's process now basically involves you complaining to the Ajit Pai FCC, and the agency doing jack shit about it. Under Pai's model, ISPs are allowed to bullshit you all they'd like in terms of caps, throttling, and other limits, as long as their bullshit is hidden somewhere in their website. And even that's not likely to be enforced:

And here’s where it gets even worse: ISPs aren’t actually required to display this information on their own websites, even though doing so apparently offers the advantage of being able to obscure it under a mountain of Lorem Ipsum-esque self-laudatory text. Companies may also submit their “transparency disclosures” directly to the FCC.

But whereas the Open Internet Order—the now-repealed FCC rules that established net neutrality—required ISPs to offer consumers quick access to information in a format that’s easy to digest, the method devised by Chairman Pai all but ensures that some consumers will never find it.

Another case in point from last week. Customers of Frontier Communications have been complaining that the company continues to charge them a $10 router rental fee every month, even when they own their own router. Customers who complain to the FCC are basically being told there's nothing the FCC can do:

Son filed a complaint with the Federal Communications Commission; Frontier responded to the complaint but stuck to its position that he has to pay the fee. A voicemail that Frontier left with Son and his wife said the company informed the FCC that "the router monthly charge is an applicable fee, and it will continue to be billed.

The FCC complaints team told Son in an email, "We reviewed the provider's response and based on the information submitted, we believe your provider has responded to your concerns." With FCC Chairman Ajit Pai having deregulated the broadband industry, there's little to no chance of the commission taking action to stop fees like the one charged by Frontier.

Take a moment to understand that. An ISP decided to charge a consumer a $10 per month router rental fee, despite the fact the customer paid $200 to own that router. When they complained to the FCC, the agency told the consumer it was no big deal and refused to help. This is life now under Ajit Pai. And when lumbering apathetic ISPs have neither competition nor competent regulatory oversight to keep them in line, they simply double down on bad behavior, knowing there's zero repercussion. Again, zero accountability was the entire point of the whole lobbying gambit.

Here's where telecom lobbyists and Ajit Pai claimed the FTC would "step in to protect consumers." But they always knew that was bullshit. The FTC's regulatory enforcement behavior is very clearly limited only to acts that are clearly "deceptive." When an ISP is looking you straight in the eye and telling you you're being screwed, there's technically nothing deceptive going on:

Even in instances where the FTC technically could act, the telecom lobby knew they'd be so inundated with other obligations (everything from monitoring accuracy in bleach labeling to policing cramming fraud), they'd take years to tackle issues--if they acted at all. The telecom lobby, in effect, told the government to neuter oversight of one of the most problematic sectors in tech, kneecapping an agency (the FCC) built specifically to monitor the sector, and the government thought that was a wonderful idea. Unless you're an inhalant addict you should probably be able to see why this could be problematic longer term.

Both examples above clearly showcase how repealing net neutrality rules will impact much more than net neutrality. And anybody still arguing that killing net neutrality rules didn't matter because the internet didn't explode (still a common refrain in some quarters), is either arguing in bad faith, doesn't understand the unique fuckery of the telecom sector, or simply has no damn idea what they're talking about.

Filed Under: customers, enforcement, fcc, ftc, modem rental fees, monopoly powers, net neutrality, oversight, transparency
Companies: frontier

None Of The Claimed Benefits Of Killing Net Neutrality Ever Arrived

from the fluff-and-nonsense dept

So just over a year ago the FCC quickly rushed to kill net neutrality at telecom lobbyists' behest. As we noted last week, the repeal did far more than just kill net neutrality protections; it effectively freed uncompetitive telecom providers from most meaningful oversight. With a few notable exceptions, most ISPs have tried to remain on their best behavior for two reasons: one, they're worried about the ongoing lawsuit from 23 State AGs that could potentially restore the rules any day now. And two, they don't want to run afoul of the nearly two dozen states that passed their own net neutrality rules in the wake of the repeal.

Of course this all occurred because of the Ajit Pai FCC claim that killing the rules would result in amazing broadband growth, competition, and investment. But as people keep digging into the numbers, they've (surprise!) increasingly realized that absolutely none of those promises ever materialized (and aren't likely to without more competition). The latest case in point comes courtesy of longtime journalist Rob Pegoraro, who again noted how that supposed investment boon never happened, and in fact many ISPs are already pulling back on investment thanks to limited competition and tepid regulatory oversight:

"Figures USTelecom posted in February, for example, show Verizon cutting its investment by 3.4% from 2017 to 2018. And the 3.9% increase shown for AT&T (T) vanishes if you subtract the $1.2 billion the firm spent in 2018 on the government-backed FirstNet emergency-responder network. And last week, AT&T Communications CEO John Donovan told attendees at an investor conference that the firm would slow its fiber build-out."

Funny, that.

Pegoraro also spoke to a number of small ISPs Ajit Pai said would be particularly aided by the gutting of popular consumer protections. They similarly couldn't actually provide any concrete examples of how the killing of net neutrality aided them, outside of some vague, unsubstantiated claims that it was harder to get a bank loan with the rules in place. Before the repeal, Pai had circulated all manner of massaged data trying to suggest that small ISPs had been harmed by the fairly modest (by international standards) neutrality protections, something the FCC's own data disproved.

And while the Pai FCC has been trying in recent weeks to suggest that the net neutrality rules resulted in a huge boost in investment and broadband speed, that too is based on flimsy, massaged data. For example the FCC has tried to claim that killing net neutrality resulted in historic fiber deployment, but at least half of last year's fiber growth was actually thanks to fiber build out conditions affixed by the previous FCC to AT&T's 2015 merger with DirecTV. And much of the data cited by the FCC showing broadband speed and coverage improvement was collected before net neutrality was even formally repealed. Go figure.

On the flip side, Pegoraro notes that none of the doomsday scenarios portrayed by net neutrality advocates really occurred either. But he fails to note that's not because ISPs didn't want to. ISPs didn't want to dramatically shift their business models only to have the AG lawsuit restore the FCC's 2015 rules, making them suddenly out of compliance. And they didn't want to violate numerous state net neutrality laws that popped up in the wake of the repeal, several of which (like in Washington State) actually go a bit further than the original FCC rules did.

Should the AG lawsuit against the FCC be victorious (a ruling should drop any day now), the FCC's 2015 rules could be restored, likely triggering an appeal and possible Supreme Court challenge. Should the AG lawsuit fail, it's likely ISPs will start being far less subtle about their efforts to abuse the lack of competition to nickel-and-dime you in creative new ways. But again, those claiming that net neutrality didn't matter because it's been a year and the internet didn't implode are really only advertising that they have no real idea what they're talking about.

More importantly, a year's hindsight has made it clear none of the repeal's purported benefits were actually real. And they weren't real because the repeal had only one real purpose: to help entrenched telecom monopolies make more money on the back of a captive customer base. That tends to get lost in the verbose discussion about policy, but it doesn't make it any less true.

Filed Under: ajit pai, broadband, fcc, fiber, investment, net neutrality, small isps

Here's Why Net Neutrality Still Matters One Year After Repeal

from the ill-communication dept

One year ago the FCC ignored a bipartisan majority of the public and killed popular net neutrality consumer protections at lobbyist behest. But contrary to conventional wisdom the FCC's "Restoring Internet Freedom" order didn't just kill "net neutrality": it neutered the FCC's authority over ISPs, ceding much of its remaining power to an FTC that lacks the authority or resources to really police bad behavior in telecom (the whole point). Those who continue to insist the repeal couldn't have been that bad because the internet didn't immediately explode only advertise their ignorance to the scope of what the telecom lobby actually accomplished.

Again, the telecom industry didn't just eliminate net neutrality rules (after allegedly trying to stuff the FCC website comment ballet box using fake and dead people), they eliminated most oversight of some of the most predatory, uncompetitive, and disliked companies in America. We effectively took the very ideas that helped create monopolies like Comcast, and doubled down. Should it be allowed to stand, the FCC's repeal leaves telecom giants (with two decades of anti-competitive behavior under their belts) free from both competition and meaningful regulatory accountability.

If you don't see the problem there, you probably haven't spent much time looking at your broadband bill, watching AT&T do business, or talking to Comcast customer support.

With a few exceptions (like AT&T using its usage caps to harm competitors like Netflix, or Centurylink blocking internet access to spam its own security products), most ISPs have tried to be on their best behavior in the year since. Why? They're worried about state laws that popped up to protect consumers in the wake of FCC apathy. They're also worried about the lawsuit by 23 AGs filed against the FCC, a ruling in which is expected any day now. Should the FCC lose, the FCC's 2015 rules could be fully restored. ISPs don't want to significantly change their business models at scale only to have the rules pop back up declaring them in violation.

As a result ISPs are just biding their time, waiting for the full green light to behave anti-competitively. They've spent some of that time getting their biggest sycophants in Congress to push bogus net neutrality laws framed as serious attempts at "bipartisan consensus" intended to "put the issue to bed." In reality these bills, literally written by industry, only serve one purpose: pre-empt tougher state or federal efforts to protect net neutrality. Such bills are filled with loopholes and the tech policy equivalent of a head fake.

In reality, this Congress has made it very clear it will never pass a net neutrality law with any real teeth.

Case in point: some lawmakers spent the repeal anniversary trying to get Mitch McConnell to floor a genuine, three-page bill (the Save the Internet Act) that would simply restore the FCC rules. But while that bill passed the House last April, it has little to no hope passing the telecom-campaign-cash-slathered Senate, where McConnell has declared the bill "dead on arrival." As such, the best hope for restoring the FCC's 2015 net neutrality rules rests with the ongoing lawsuit.

Should the lawsuit fail, the onus lies with voters to 1) purge Congress of Luddites and telecom lackeys that have repeatedly made it clear that the public interest and Democratic process does not matter to them, and 2) push this new Congress to pass a real net neutrality law down the road.

Either way, this is a problem that's not going away for the telecom industry or anybody forced to do business with them. With US telcos refusing to upgrade or repair their aging DSL lines, cable giants like Comcast and Charter are securing bigger regional monopolies than ever across much of the United States (and no, 5G wireless isn't going to magically fix the problem). Emboldened by a lack of regulatory oversight and little real competition, they won't be able to help themselves, and will inevitably try to take full advantage in new and creatively stupid ways.

For example, it's not hard to envision some if the controversial "zero rating" shenanigans we've seen in the video space impacting innovative, emerging businesses like game streaming. ISPs are busy cooking up their own challengers to cloud gaming efforts like Google Stadia (which eliminates home hardware and devours bandwidth by moving all processing to the cloud). Given precedent, you can be fairly sure ISPs will ensure usage caps apply to competing services, but not their own products. They're already doing it with video, why wouldn't they elsewhere?

Those who have foolishly claimed net neutrality rules weren't important because the Earth didn't immediately stop rotating on its axis don't understand that this has always been a slow death by a thousand cuts scenario. First, ISPs get consumers used to monthly usage caps and overage fees that have no valid technical justification. Then, they begin using those caps to disadvantage their competitors (which again is already happening). From there, they get consumers used to being nickel-and-dimed by charging you more money to view HD video streams as intended, or to avoid having your games, music, or video throttled.

We're already well down the rabbit hole, and most of these "net neutrality doesn't matter" folks haven't even noticed (or worse, are foolishly cheering as they stumble and bumble their way down the slippery slope).

Anti-competitive shenanigans aside, the FCC's 2015 rules also required that ISPs be more transparent about what kind of connection you're buying. The repeal made it harder to determine whether services will be throttled or banned outright, because ISPs no longer face any real penalty for lying to you. And with the FCC's authority eroded and the FTC too busy to police telecom seriously, nobody will do much about other bad behavior in the sector, be it wireless carrier abuse of your location data, or the ISP tendency to sign customers up for scam services they never asked for.

While States may pick up some consumer protection slack, the FCC's repeal also attempts to strip states of that ability as well. The telecom lobby goal is no competition and no federal or state oversight. A perfect vacuum. See the problem yet?

While Facebook's issues are undeniable, the recent exclusive fixation on Facebook as the root of all evil in tech policy circles has been a huge gift to the telecom lobby. Telecom lobbyists have been pushing for the hyper regulation of companies they hope to compete with in the video ad space, hoping you don't notice they just convinced government to obliterate oversight of their own businesses, despite its natural monopoly problems and ad ambitions every bit as problematic as Facebook's.

Silicon Valley and telecom share many of the same problems, including the abysmal treatment of consumer privacy. But telecom is always going to be unique in that its customers are entirely captive. You might be able to fix this by simply pushing for policies that bring more competition to market, but history has repeatedly shown how that's difficult with a Congress slathered in campaign contributions from the likes of AT&T, Verizon, Comcast, and Spectrum.

Those "bored" by the net neutrality debate miss the broader implications. And those applauding the rules' demise are usually oblivious to not only what the rules did, but the fact they're actively cheering against their own best self interests. Net neutrality isn't something that just goes away with the passage or the elimination of rules, and violations are just another in a long line of symptoms of a broken telecom market we refuse to fix due to rampant corruption. No period in tech and telecom policy history has done a better job driving that point home.

Filed Under: broadband, competition, fcc, net neutrality

Report Says EU ISPs Are Happily Ignoring Net Neutrality Rules

from the ill-communication dept

A few years ago, the European Union passed some fairly decent net neutrality rules that went notably further than the FCC's 2015 rules we just discarded here in the States. They not only prohibited ISPs from unjustly blocking, throttling, or restricting access to services the ISP may compete with, they imposed some basic protections governing zero rating -- a practice ISPs here in the US have increasingly been using anti-competitively.

The problem for the EU is that after the European Union's Body of European Regulators of Electronic Communications (BEREC) crafted the guidelines, it was up to individual countries to interpret and enforce them, something that apparently hasn't been going all that well. According to a new coalition of 45 academics, nonprofits, and private companies, European ISPs are routinely tap dancing around the restrictions. Under the current rules, European ISPs are allowed to inspect and shape traffic using "deep packet inspection" (DPI) tech, but only if it's to optimize the network. They can't utilize DPI to track user activity for money making purposes. But the group says in a letter to European authorities they're doing so anyway in violation of the rules:

"IAS providers are increasingly using DPI technology for the purpose of traffic management and the differentiated pricing of specific applications or services (e.g. zero-rating) as part of their product design. DPI allows IAS providers to identify and distinguish traffic in their networks in order to identify traffic of specific applications or services for the purpose such as billing them differently throttling or prioritising them over other traffic.

Here in the States, ISPs routinely use deep packet inspection to track your online browsing behavior (often down to the millisecond) then monetize that data. In some instances, ISPs like AT&T have actually tried to charge consumers extra if they wanted to opt out of such surveillance. And while DPI can also be used to single out and manage specific types of traffic, actually confirming whether an ISP is using DPI for commercial tracking purposes requires some diligence on the part of regulators. It's a diligence that's lacking in most countries, the coalition notes:

"The nature of DPI necessitates telecom expertise as well as expertise in data protection issues. Yet, we observe a lack of cooperation between national regulatory authorities for electronic communications and regulatory authorities for data protection on this issue, both in the decisions put forward on these products as well as cooperation on joint opinions on the question in general."

Granted, ISPs have always tried to hind behind ambiguous claims of "congestion" to justify anti-competitive behavior. At the same time, ISPs have also increasingly used such technologies to erect arbitrary barriers letting them charge users specifically by types of usage, opening the doors to ISPs that have tried to charge users more money if they'd like to actually use video, gaming, or streaming services without them being throttled by default. It's what lets Verizon sell "unlimited" data plans that ban 4K video and throttle HD video unless you're willing to shell out yet more money.

The coalition notes that at least 186 EU ISPs are now ignoring the net neutrality restrictions without penalty, highlighting how net neutrality rules don't mean much if regulators aren't willing to enforce them. And while some might argue that none of this matters, letting ISPs dictate which traffic reaches you based on how much you're willing to pay is a fairly ugly precedent it shouldn't be too difficult to see the longer term issues with. Especially when there's neither healthy competition nor balanced regulatory oversight in place to rein in ISPs' worst impulses.

Filed Under: deep packet inspection, eu, net neutrality

House Dems Start To Wimp Out On Net Neutrality

from the ill-communication dept

Back in March we discussed the unveiling of the Save The Internet Act, a three page bill that would do one thing: restore the FCC's 2015 net neutrality rules stripped away by Ajit Pai, as well as restore the FCC's authority over broadband providers. As we've long noted, the net neutrality repeal didn't just kill net neutrality, it gutted FCC authority over natural broadband monopolies, shoveling any remaining authority to an FTC experts have repeatedly warned lacks the authority or resources to adequately police giants like Comcast (the entire, often missed point of the telecom industry's lobbying gambit).

In April, the House passed the bill, though Senator Mitch McConnell stated the bill would be "dead on arrival" once it reached the Senate. McConnell was happy to ignore the fact that net neutrality protections have the bipartisan support of a majority of Americans, reiterating how so many tech policy decisions are inaccurately framed as partisan. Why? It helps encourage division and stall progress on any measures that challenge the revenues of the nation's biggest (and least liked) companies (AT&T, Verizon, Comcast, Charter Spectrum).

Realizing that the chance of Senate passage is dwindling thanks to McConnell, numerous House Democrats have no started to slowly walk away from the Save The Internet Act, instead saying they want the creation of a "net neutrality working group" (read: try to create an entirely new bill that actually will pass):

"Around three dozen lawmakers are crafting a letter to send to the House’s Democratic leadership—including House Speaker Nancy Pelosi (D-Calif.) and Majority Leader Steny Hoyer (D-Md.)—expressing their desire for a working group to be formed in the wake of the Save the Internet Act not gaining traction in the Senate, where Senate Majority Leader Mitch McConnell called the bill “dead on arrival.”

The draft letter was signed by more than 30 Democrats in the House, and staffers for six lawmakers confirmed to the Daily Dot this week that their lawmakers signed it. The draft letter has not yet been delivered, according to two sources familiar with the matter."

For those who haven't followed the net neutrality fight closely, this might sound like a good idea. But the FCC's 2015 net neutrality rules were already crafted after more than a decade of debate. They're the result of years upon years of workshops, meetings, hearings, and previous, failed efforts (like the FCC's flimsy 2010 rules). There's also the fact that the bipartisan majority of the public wants these rules restored intact, and they have the support of every consumer group of note in the United States. A new working group would effectively be starting this entire process over.

The problem of course is that if McConnell's senate won't pass the Save The Internet Act, it's equally unlikely it's going to pass any new bill worth the time it takes to debate it. Any bill that does make it through the Senate and gains the support of telecom industry BFFs like Marsha Blackburn is going to be so watered down and filled with loopholes as to be useless. That's of course been the goal of the telecom sector for a while: shovel some terrible net neutrality bill in name only that doesn't fix the problem, but does pre-empt any tougher state or federal law from taking root.

It's worth remembering that there's currently a lawsuit against the FCC that should be ruled on any day now. If won, that lawsuit, filed by 23 State attorneys general, consumer groups, and companies like Mozilla, would fully restore the FCC's 2015 rules (a major reason why telecom lobbyists are rushing toward new bills they'll help write that would pre-empt alternative options).

If you're a lawmaker genuinely interested in having tough net neutrality protections on the books, it makes far more sense to wait for the outcome of that case, and use Republican opposition to an idea with widespread bipartisan support as fodder in the 2020 elections. Then try again with a different array of lawmakers, some of whom, hopefully, are less prone to mindlessly kissing the ass of predatory telecom monopolies with thirty years of documented, anti-competitive behavior under their belts.

Filed Under: congress, fcc, net neutrality

House Passes Net Neutrality Bill, McConnell Promises It Won't Survive Senate

from the ill-communication dept

Yesterday the House voted 232-190 to approve the Save The Internet Act, three-page legislation that would fully restore not just the FCC's 2015 net neutrality rules, but its authority to police the telecom sector. As we've long noted, the Ajit Pai FCC's repeal involved effectively neutering the FCC at the telecom sector's behest, then shoveling any remaining oversight authority to the FTC, which lacks both the authority and attention span to effectively police telecom giants. The idea that telecom oversight would be lost in the cracks was, of course, the entire point of the telecom lobbying gambit.

The bill now heads to the Senate, where Mitch McConnell has already stated it will be "dead on arrival." The bill also needs to somehow avoid a Trump veto, which the White House all but guaranteed with a statement this week saying Trump would be advised to veto the measure. Why? The administration proclaimed it was because killing net neutrality had resulted in incredible benefits to American consumers:

"Since the new rule was adopted in 2018, consumers have benefited from a greater than 35 percent increase in average, fixed broadband download speeds, and the United States rose to sixth, from thirteenth, in the world for those speeds. In 2018, fiber was also made available to more new homes than in any previous year, and capital investment by the Nation’s top six Internet service providers increased by $2.3 billion."

As I noted over at The Verge some of those statistics are a bit shaky, and there's zero evidence any of them had anything to do with killing net neutrality. The 35% bump in broadband speeds, for example, is pretty well in line with past growth, and is courtesy of a lot of things, ranging from relatively inexpensive Cable DOCSIS 3.1 upgrades, to the rise of community broadband efforts (which the Trump FCC opposes). And the "record fiber" growth that the White House credits to "light touch regulatory" policies was courtesy of fiber build out merger conditions affixed on the AT&T DirecTV merger by the previous FCC.

There's some hope among activists that the bill passes the Senate, then avoids a Trump veto by appealing to his "populist" streak (whatever that means any more), given that the rules have overwhelming, bipartisan support. That's always seemed like a long shot given Trump's blind fealty to these companies so far. Still, even if the vote fails, the loss will provide a voter scorecard ahead of the 2020 elections, making it abundantly clear which politicians actively respect the will of the public and the need for level internet playing fields, and which prioritize the revenues of giant natural telecom monopolies.

The best chance to reverse the repeal has always been with the courts. Especially given the numerous, often utterly bizarre procedural missteps the FCC made during the repeal. If the lawsuit filed against the FCC by 23 state AGs, consumer groups, and a handful of smaller companies like Mozilla is victorious (a ruling could pop up within months), it could immediately restore the 2015 rules and the FCC's full authority over ISPs.

Filed Under: donald trump, fcc, house, mitch mcconnell, net neutrality, senate, veto

Colorado Net Neutrality Bill Heads To Governor's Desk For Signing

from the ill-communication dept

You can add Colorado to the growing list of states finalizing state-level net neutrality legislation. Colorado's new Senate Bill 78 would not only block ISPs from engaging in all the usual anti-competitive shenanigans (blocking or otherwise throttling a competing service), but it would also force ISPs to pay back state taxpayer-backed grants if they engage in said behaviors. After a last-second GOP attempt to add porn filters to the legislation failed, the bill passed the Colorado General Assembly last week and heads to the desk of Colorado Governor Jared Polis for signature.

Colorado legislators note the effort is just one of 120 bills and resolutions in 34 states (and DC) crafted on this subject since Ajit Pai's FCC voted to kill net neutrality in late 2017. The bills are a direct reflection of the strong bipartisan majority of Americans that support such protections.

As we've seen countless times before, telecom industry backed organizations like the AT&T-funded Colorado Competitive Council were quick to complain that such state-level efforts would only create regulatory confusion, and that enforcement of net neutrality should be left to the FTC:

"An open internet is a critical issue, and the federal government has been clear that it is in their purview. (Senate Bill 78) is unnecessary and would only add to a patchwork of regulations, confusing the regulatory certainty that exists in Colorado today,” said Nicholas J. Colglazier, director of Colorado Competitive Council, and who testified against the bill. “The Federal Trade Commission has authority to enforce the open internet practices of internet service providers, and has demonstrated its willingness to do so."

Local ISP CenturyLink also came out against the perils of a "patchwork" of state-level regulation on this subject:

"A patchwork of state-by-state regulations of the internet, which is what Colorado SB 78 calls for, is not the right approach for this important policy."

But again, the industry likes to ignore the fact that if they hadn't lobbied to kill modest FCC net neutrality rules, states wouldn't be pursuing this route in the first place. It's the telecom industry that's responsible for this "regulatory confusion," though they're the last ones apparently willing to own up to that fact. Meanwhile, the telecom lobby pushed hard to shift ISP oversight from the FCC to FTC specifically because they know the latter lacks the authority and resources to actually do so, another fact the telecom sector likes to tap dance around as the industry complains about the direct outcome of its own actions.

Filed Under: broadband, colorado, competition, net neutrality, state laws