(Image courtesy of: Rick Snapp)

CenturyLink customers in Utah were rudely interrupted earlier this month by an ad for CenturyLink’s pricey security and content filtering software that left their internet access disabled until they acknowledged reading the ad.

Dear Utah Customer,

Your internet security and experience is important to us at CenturyLink.

The Utah Department of Commerce, Division of Consumer Protection requires CenturyLink to inform you of filtering software available to you. This software can be used to block material that may be deemed harmful to minors.

CenturyLink’s @Ease product is available here and provides the availability of such software.

As a result of the forced ad, all internet activity stopped working until a customer opened a browser session to first discover the notification, then clear it by hitting the “OK” button at the bottom of the screen. This irritated customers who use the internet for more than just web browsing.

One customer told Ars Technica he was watching his Fire TV when streaming suddenly stopped. After failed attempts at troubleshooting, the customer checked his web browser and discovered the notification message. After clicking “OK,” his service resumed.

A CenturyLink spokesperson told KSL News, “As a result of the new law, all CenturyLink high-speed internet customers in Utah must acknowledge a pop-up notice, which provides information about the availability of filtering software, in order to access the internet.”

In fact, according to a detailed report by Ars Technica, CenturyLink falsely claimed that the forced advertisement was required by Utah state law, when in fact the company would be in full compliance simply by notifying such software was available “in a conspicuous manner.”

CenturyLink chose to turn the Utah law to their profitable advantage by exclusively promoting its own product — @Ease, a costly ISP-branded version of Norton Security. CenturyLink recommended customers choose its Advanced package, which costs $14.95 a month. But parental filtering and content blocking tools are not even mentioned on the product comparison page, leaving customers flummoxed about which option to choose.

In effect, CenturyLink captured an audience and held their internet connection hostage — an advantage most advertisers can only dream about. CenturyLink countered that only residential customers had their usage restricted, and that because of the gravity of the situation, extraordinary notification methods were required.

But as Ars points out, no other ISP in the state went to this extreme level (and used it as an opportunity to make more money with self-interested software pitches).

Bill sponsor Sen. Todd Weiler (R), said ISPs were in compliance simply by putting a notice on a monthly bill or sending an e-mail message to customers about the software. Weiler added that ISPs had all of 2018 to comply and most had already done so. AT&T, for example, included the required notice in a monthly bill statement. CenturyLink waited until the last few weeks of the year, and used it as an opportunity to upsell customers to expensive security solutions most do not need.

With the demise of net neutrality, ISPs that were forbidden to block or throttle content for financial gain are now doing so, with a motivation to make even more money from their customers.

Just had @CenturyLink block my internet and then inject this page into my browser (dns spoofing I think) to advertise their paid filtering software to me. Clicking OK on the notice then restored my internet… this is NOT okay! pic.twitter.com/NtCZUeJF8I

— Rich Snapp (@Snapwich) December 9, 2018

AT&T customers are telling Stop the Cap! the company is emailing their broadband customers to alert them they now qualify for unlimited internet access because they also happen to subscribe to DirecTV Now, AT&T’s streaming service targeting cord cutters.

“Good news about your internet service! Because you also added DIRECTV NOW℠ to your internet service, we’re giving you unlimited home internet data at no additional cost.”

AT&T normally charges customers an extra $30 a month to remove their 1,000 GB data cap.

The move has some net neutrality implications, because AT&T is favoring its own streaming service over the competition, which includes Sling TV, Hulu TV, PlayStation Vue, and other similar services. If a customer subscribes to Hulu TV, the 1 TB cap remains in force. If they switch to DirecTV Now, the cap is gone completely.

AT&T has undoubtedly heard from customers concerned about streaming video chewing up their data allowance. With AT&T’s DirecTV on the verge of launching a streaming equivalent of its satellite TV service, data caps are probably bad for business and could deter customers from switching.

It is yet the latest evidence that data caps are more about marketing and revenue than technical necessity.

Updated 1:15pm EST 12/20: Hat tip to Karl Bode, who got AT&T’s official confirmation the unlimited internet offer that formerly applied to DirecTV satellite customers has now quietly been extended to DirecTV Now streaming customers as well. We are still looking for a screen cap of anyone who received an e-mail from AT&T about unlimited service for streaming customers. If you have one, drop me a line at phil (at) stopthecap.com

Pai

FCC Chairman Ajit Pai is leading the charge to define text messaging (SMS, MMS) as an “information service,” allowing phone companies a clear right to censor or block messages they do not like.

On Tuesday, Pai proposed a Declaratory Ruling that would deny a petition from consumer group Public Knowledge asking the FCC to once and for all affirm text messaging as a telecommunications service. The request goes all the way back to a 2007 dispute between NARAL — a reproductive rights group and Verizon Wireless. The wireless carrier blocked a text message campaign from NARAL, claiming it had the right to block “controversial or unsavory” text messages. It was the only wireless company to reject NARAL’s text-message program, which invited consumers to sign up for alerts and other information.

Legal experts told the New York Times private companies like Verizon probably had the legal right to decide which messages to carry, because text messaging was never defined as a “common carrier” service. Verizon Wireless at the time insisted it did not accept text messaging programs from any group “that seeks to promote an agenda or distribute content that, in its discretion, may be seen as controversial or unsavory to any of our users.”

Verizon claimed it was neutral on the subject of abortion, but the topic itself was forbidden to be discussed or raised in text messaging campaigns directed to customers.

That 2007 claim irritated then-NARAL president Nancy Keenan, who claimed Verizon was interfering with free speech and activism.

“No company should be allowed to censor the message we want to send to people who have asked us to send it to them,” Ms. Keenan told the newspaper in 2007. “Regardless of people’s political views, Verizon customers should decide what action to take on their phones. Why does Verizon get to make that choice for them?”

Pai says giving companies like Verizon the permanent right to manage the kinds of text messages allowed on their networks is a good way to stop texting spam.

“The spam rate for text messages is estimated at 2.8%, compared to a rate of over 50% for email. That’s not by accident,” Pai claimed. “Today’s wireless messaging providers apply filtering to prevent large volumes of unwanted messages from ever reaching your phone.”

Pai claimed that the effort underway to classify text messaging as a telecommunications service was anti-consumer and would open customers up to a lot more unwanted messages.

“This may not seem like a big deal, but such a classification would dramatically curb the ability of wireless providers to use robotext-blocking, anti-spoofing, and other anti-spam features,” Pai said in a blog post on Medium.

Feld

“It wouldn’t be the holiday season without Chairman Pai giving a great big gift basket to corporate special interests at the expense of American consumers,” said Harold Feld, senior vice president at Public Knowledge. “Chairman Pai proposes to grant the wireless industry’s request to classify text messages as Title I ‘information services,’ stripping away vital consumer protections. Worse, Chairman Pai’s action would give carriers unlimited freedom to censor any speech they consider ‘controversial,’ as Verizon did in 2007 when it blocked NARAL and prompted the Public Knowledge 2007 Petition.”

Feld claims Pai is only telling half the story.

“As the FCC made clear in 2016 (over then-Commissioner Pai’s dissent), text messages and robocalls are both ‘calls’ under the anti-robocall statute, and this Title II designation does not prevent filtering or other technological means to block unwanted robocalls or spam texts,” Feld said. “Indeed, Chairman Pai undermines his own argument by pointing out that email, which has always been an information service, has a 50 percent spam rate whereas text messaging, which the FCC treats as a ‘phone call,’ has a 2.5 percent spam rate.”

The FCC plans to vote on the matter, and is likely to adopt Pai’s proposal, at a meeting on Dec. 12.

Wheeler

Three developments — two in the courts and another at the ballot box — have encouraged former FCC Chairman Thomas Wheeler to believe net neutrality can be restored, but only if a new Democratic majority in the House of Representatives reignites public attention on the issue and a D.C. court finds the current FCC acted recklessly in repealing the rules.

Wheeler, a visiting fellow of Governance Studies at the Brookings Institute’s Center for Technology Innovation, argues the last chapter of net neutrality has yet to be written:

The FCC’s Authority to Govern Internet Traffic Upheld by U.S. Supreme Court

On November 5, the Supreme Court declined to review the decision of the D.C. Circuit Court that twice upheld the 2015 Open Internet Rule. The industry groups that had long opposed non-discriminatory access to broadband networks had previously stopped such regulation at the D.C. Circuit. When they attempted the same thing with regard to the 2015 decision of the Federal Communications Commission (FCC), a three-judge panel ruled the FCC’s favor. The industry then appealed the panel’s decision to the entire D.C. Circuit and lost again. The industry then appealed that loss to the Supreme Court. The Supreme Court voted 4-3 (with Chief Justice Roberts and Justice Kavanaugh abstaining) to deny a writ of certiorari for the appeal. As a result, the lower court’s decision upholding the 2015 Open Internet Rule stands.

In order to overcome earlier court rulings that found the FCC lacked the authority to regulate broadband services, Wheeler redefined broadband as a telecommunications service, subject to stronger regulatory authority under Title II of the Communications Act. Under “common carrier” provisions, internet service providers could not engage in traffic discrimination. The industry disagreed with Wheeler’s reclassification and sued. Because the Supreme Court refused to hear their appeal, the D.C. District Court ruling in favor of the FCC stands.

Trump’s FCC Becomes a Partner of Big Telecom

The Trump Administration appointed a Republican majority to the FCC that wiped away or repealed most of the accomplishments of the FCC under Chairman Wheeler, including net neutrality.

Pai

“In 2017, the Trump FCC repealed the Open Internet Rule at the request of the network companies. In the process, the FCC also ruled that the agency had only minimal authority over internet networks,” Wheeler wrote. “Except for toothless transparency requirements, the Commission would exercise no oversight over broadband internet access services. Not only did the agency created by Congress to oversee the nation’s networks walk away from that responsibility, but it also joined with the plaintiffs in asking the Supreme Court to overrule the D.C. Circuit’s 2015 decision. When the High Court denied that request, it breathed new life into the 2015 Open Internet Rule.”

Wheeler was gratified by the news that Democrats have retaken the House, noting that presumptive Speaker Nanci Pelosi, next chairman of the Energy & Commerce Committee Frank Pallone, and incoming chairman of the Telecommunications Subcommittee Mike Doyle are all vocal supporters of net neutrality. Reps. Pallone and Doyle even attempted to introduce a resolution to repeal the FCC’s decision on net neutrality, but Republicans refused to allow the issue to come up for a vote in the House.

Wheeler believes both congressmen will conduct more aggressive oversight hearings over the FCC, but until Republicans are voted out, net neutrality “is a long shot” according to Wheeler.

“Even if it was passed by the House, the Republican-controlled Senate would not likely support it. Even if they miraculously passed a bill, President Trump would no doubt veto it, having previously spoken out against net neutrality,” Wheeler said. “The only foreseeable legislative path would be with the support of the network companies, and that support would come at the price of watering down the proposal to render it virtually meaningless.”

Will a Court Find Trump’s FCC “Arbitrary and Capricious?”

On Feb. 1, the D.C. Circuit Court will hear arguments over a lawsuit challenging the FCC’s decision to repeal net neutrality. Wheeler says if the D.C. Circuit rules against the FCC and vacates the decision to repeal net neutrality, Wheeler’s 2015 Open Internet rules will be reinstated.

“In their zeal to gut oversight of their activities, the internet networks and their Trump FCC allies may have shot themselves in the foot,” Wheeler wrote. “There is a strong case that the Trump FCC acted in an arbitrary and capricious manner when it repealed the 2015 Open Internet Rule and walked away from any responsibility over the most important network of the 21st century. If the D.C. Circuit makes such a finding, net neutrality would once again be the law of the land. Although the Trump FCC would probably spitefully ignore its enforcement and even force adoption of a new rule to free the broadband companies, that action would simply bolster the Democrats in the House.”

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday refused a request by the Trump administration and the telecommunications industry to wipe away a lower court decision that had upheld Obama-era net neutrality rules aimed at ensuring a free and open internet, though the justices’ action does not undo the 2017 repeal of the policy.

The high court decision not to throw out the 2016 U.S. Court of Appeals for the District of Columbia Circuit ruling leaves a legal precedent in place that could help net neutrality supporters in any future legal battle if that policy is ever re-introduced.

The rules championed by Democratic former President Barack Obama, intended to safeguard equal access to content on the internet, were opposed by President Donald Trump, a Republican.

The Trump administration and the telecom industry had wanted to erase the 2016 ruling even though the Republican-led Federal Communications Commission in December voted to repeal the net neutrality rules. The policy reversal went into effect in June.

The Supreme Court’s brief order noted that three of the court’s conservative justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – would have thrown out the appeals court decision. Neither Chief Justice John Roberts nor new Trump appointee Brett Kavanaugh participated in the decision.

Industry trade group USTelecom, one of the groups that challenged the 2015 net neutrality rules, said the high court’s action was “not surprising.” USTelecom said it would “continue to support” the repeal “from challenges in Washington, D.C. and state capitals.”

Rosenworcel

FCC Commissioner Jessica Rosenworcel, a Democrat who backed the net neutrality order in 2015, said on Twitter that the commission had “actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet policies. But today the Supreme Court refused to do so.”

The Justice Department also has filed suit to block California’s state net neutrality law from taking effect in January. The state agreed in October to delay enforcement of the law pending appeals of the net neutrality reversal.

The FCC voted 3-2 in December along party lines to reverse the rules adopted under Obama that had barred internet service providers from blocking or throttling traffic, or offering paid fast lanes, also known as paid prioritization.

The new rules, which gave internet service providers greater power to regulate the content that customers access, are now the subject of a separate legal fight after being challenged by many of the groups that backed net neutrality.

The net neutrality repeal was a win for providers like Comcast Corp, AT&T Inc and Verizon Communications Inc. It was opposed by internet companies like Facebook Inc, Amazon.com Inc and Alphabet Inc, which have said the repeal could lead to higher costs.

Reporting by Lawrence Hurley; Additional reporting by David Shepardson; Editing by Will Dunham