AT&T was unhappy with the low internet speed score the FCC was about to give the telecom giant, so it made a few phone calls and got the government regulator to effectively rig the results in its favor.

“Regulatory capture” is a term becoming more common in administrations that enable regulators that favor friendly relations with large companies over consumer protection, and under the Trump Administration, a very business-friendly FCC has demonstrated it is prepared to go the distance for some of the country’s largest telecom companies.

Today, the Wall Street Journal reported AT&T successfully got the FCC to omit DSL speed test results from the agency’s annual “Measuring Broadband America” report. Introduced during the Obama Administration, the internet speed analysis was designed to test whether cable and phone companies are being honest about delivering the broadband speed they advertise. Using a small army of test volunteers that host a free speed testing router in their home (full disclosure: Stop the Cap! is a volunteer host), automated testing of broadband performance is done silently by the equipment on an ongoing basis, with results sent to SamKnows, an independent company contracted to manage the data for the FCC’s project.

In 2011, the first full year of the program, results identified an early offender — Cablevision/Optimum, which advertised speed it couldn’t deliver to many of its customers because its network was oversold and congested. Within months, the company invested millions to dramatically expand internet capacity and speeds quickly rose, sometimes beyond the advertised level. In general, fiber and cable internet providers traditionally deliver the fastest and most reliable internet speed. Phone companies selling DSL service usually lag far behind in the results. One of those providers happened to be AT&T.

In the last year, the Journal reports AT&T successfully appealed to the FCC to keep its DSL service’s speed performance out of the report and withheld important information from the FCC required to validate some of the agency’s results.

The newspaper also found multiple potential conflicts of interest in both the program and SamKnows, its contracted partner:

• Providers get the full names of customers using speed test equipment, and some (notably Cablevision/Optimum) regularly give speed test customers white glove treatment, including prioritized service, performance upgrades and extremely fast response times during outages that could affect the provider’s speed test score. Jack Burton, a former Cablevision engineer said “there was an effort to make sure known [users] had up-to-date equipment” like modems and routers. Cablevision also marked as “high priority” the neighborhoods that contained speed-testing users, ensuring that those neighborhoods got upgraded ahead of others, said other former Cablevision engineers close to the effort.
• Providers can tinker with the raw data, including the right to exclude results from speed test volunteers subscribed to an “unpopular” speed tier (usually above 100 Mbps), those using outdated or troublesome equipment, or are signed up to an “obsolete” speed plan, like low-speed internet. Over 25% of speed test results (presumably unfavorable to the provider) were not included in the last annual report because cable and phone companies objected to their inclusion.
• SamKnows sells providers immediate access to speed test data and the other data volunteers measure for a fee, ostensibly to allow providers to identify problems on their networks before they end up published in the FCC’s report. Critics claim this gives providers an incentive to give preferential treatment to customers with speed testing equipment.

Some have claimed internet companies have gained almost total leverage over the FCC speed testing project.

The Journal:

Internet experts and former FCC officials said the setup gives the internet companies enormous leverage. “How can you go to the party who controls the information and say, ‘please give me information that may implicate you?’ ” said Tom Wheeler, a former FCC chairman who stepped down in January 2017. Jim Warner, a retired network engineer who has helped advise the agency on the test for years, told the FCC in 2015 that the rules for providers were too lax. “It’s not much of a code of conduct,” Mr. Warner said.

An FCC spokesman told the Journal the program has a transparent process and that the agency will continue to enable it “to improve, evolve, and provide meaningful results as we move forward.”

The stakes of the FCC’s speed tests are enormous for providers, now more reliant than ever on the highly profitable broadband segment of their businesses. They also allow providers to weaponize  favorable performance results to fight off consumer protection efforts that attempt to hold providers accountable for selling internet speeds undelivered. In some high stakes court cases, the FCC’s speed test reports have been used to defend providers, such as the lawsuit filed by New York’s Attorney General against Charter Communications over the poor performance of Time Warner Cable. The parties eventually settled that case.

In 2018, the key takeaway from the report celebrated by providers in testimony, marketing, and lobbying, was that “for most of the major broadband providers that were tested, measured download speeds were 100% or better of advertised speeds during the peak hours.”

Comcast often refers to the FCC’s results in claims about XFINITY internet service: “Recent testing performed by the FCC confirms that Comcast’s broadband internet access service is one of the fastest, most reliable broadband services in the United States.” But in 2018, Comcast also successfully petitioned to FCC to exclude speed test results from 214 of its testing customers, the highest number surveyed among individual providers. In contrast, Charter got the FCC to ignore results from 148 of its customers, Mediacom asked the FCC to ignore results from 46 of its internet customers.

Among the most remarkable findings uncovered by the Journal was the revelation AT&T successfully got the FCC to exclude all of its DSL customers’ speed test results, claiming that it would not be proper to include data for a service no longer being marketed to customers. AT&T deems its DSL service “obsolete” and no longer worthy of being covered by the FCC. But the company still actively markets DSL to prospective customers. This year, AT&T also announced it was no longer cooperating with SamKnows and its speed test project, claiming AT&T has devised a far more accurate speed testing project itself that it intends to use to self-report customer speed testing data.

Cox also managed to find an innovative way out of its poor score for internet speed consistency, which the FCC initially rated a rock bottom 37% of what Cox advertises. Cox claimed its speed test results were faulty because SamKnows’ tests sent traffic through an overcongested internet link yet to be upgraded. That ‘unfairly lowered Cox’s ratings’ for many of its Arizona customers, the company successfully argued, and the FCC put Cox’s poor speed consistency rating in a fine print footnote, which included both the 37% rating and a predicted/estimated reliability rating of 85%, assuming Cox properly routed its internet traffic.

The FCC report also downplays or doesn’t include data about internet slowdowns on specific websites, like Netflix or YouTube. Complaints about buffering on both popular streaming sites have been regularly cited by angry customers, but the FCC’s annual report signals there is literally nothing wrong with most providers.

Providers still fear their own network slowdowns or problems during known testing periods. The Journal reports many have a solution for that problem as well — temporarily boosting speeds and targeting better performance of popular websites and services during testing periods and returning service to normal after tests are finished.

James Cannon, a longtime cable and telecom engineering executive who left Charter in February admitted that is standard practice at Spectrum.

“I know that goes on,” he told the Journal. “If they have a scheduled test with a government agency, they will be very careful about how that traffic is routed on the network.”

As a result, the FCC’s “independent” annual speed test report is now compromised by large telecom companies, admits Maurice Dean, a telecom and media consultant with 22 years’ experience working on streaming, cable and telecom projects.

“It is problematic,” Dean said. “This attempt to ‘enhance’ performance for these measurements is a well-known practice in the industry,’ and makes the FCC results “almost meaningless for describing actual user experience.”

Tim Wu, a longtime internet advocate, likened the speed test program as more theoretical than actual, suggesting it was like measuring the speed of a car after getting rid of traffic.

Pai

After significant lobbying by the cable industry, FCC Chairman Ajit Pai made a decision to propose splitting up the 5.9 GHz so-called Vehicle-to-Vehicle (V2V) band to open up 45 MHz for unlicensed Wi-Fi services and leave 30 MHz reserved for emerging crash avoidance technology that will allow cars to communicate with each other to reduce accidents.

Pai has been frustrated by the slow development of intelligent vehicle communications, especially as different competing technologies appear to have delayed deployment as carmakers ponder a technology shift. Pai’s proposal would allow auto manufacturers to debate what kind of spectrum division might be appropriate within the remaining band if different technologies are eventually deployed. But Pai would also quickly move to open up much of the rest of the band for cable industry and consumer Wi-Fi services.

“My proposal would do far more for both automotive safety and Wi-Fi than the status quo,” Pai said, noting he was adding his proposal for FCC consideration at a meeting on Dec. 12.

The cable industry, through its national lobbying group NCTA-The Internet & Television Association, quickly applauded Pai’s proposal, which nearly mirrors the plan recommended by the nation’s biggest cable companies.

“We applaud Chairman Pai’s announcement today that the Commission intends to move forward in considering a new plan for 5.9 GHz spectrum band that will chart a constructive path forward in putting these frequencies to better use for consumers,” said NCTA President Michael Powell. “The Chairman’s proposal will enable the fastest gigabit Wi-Fi speeds in America, ensuring that Wi-Fi can keep pace with growing consumer demand and the deployment of next-generation wireless broadband technologies. We also thank Commissioners O’Rielly and Rosenworcel for their tireless efforts in support of unlicensed spectrum, especially enabling Wi-Fi in the 5.9 GHz band.”

Cable operators including Charter and Comcast want to deploy a large network of Wi-Fi hotspots in the new band to support their growing mobile service operations. Both stand to save substantially by offloading network traffic to their own wireless networks instead of relying on Verizon Wireless, which is contracted to provide 4G LTE service.

Consumers will eventually also be able to purchase in-home routers that will support the new 5.9 GHz band, if Pai’s proposal is approved. The new Wi-Fi band, located between 5.85-5.895 GHz is adjacent to the existing 5.9 GHz Wi-Fi band in the United States (5.725-5.850 GHz)

Expanding available Wi-Fi spectrum may help consumers get faster wireless connections, especially in areas where signal congestion from other users is significant. Some proponents suggest that the new band could allow consumers to experience near-gigabit Wi-Fi speeds, but that will largely be dependent on the equipment used, one’s distance from a Wi-Fi hotspot, and any prevailing wireless traffic congestion.

Telecom companies are cutting investment in their networks despite promises by Republican members of the FCC that repeal of net neutrality would inspire increased investment.

Charter, Comcast, AT&T, and Verizon have surprised Wall Street with dramatic cutbacks in spending and investment in their networks, with one provider admitting improving profit margins are now a bigger priority.

As a result, Wall Street analysts are revising down capital expenditure (Capex) estimates in reports to their investor clients.

“Comcast and Charter missed [third quarter] expectations for Capex and guided 2019 lower than previously planned,” reported Nomura in a note to investors. “We have lowered our combined 2019 Capex forecast for Comcast and Charter from $14.6 billion to $14.2 billion.”

AT&T’s drop in network spending was the most dramatic among the country’s top telecom companies. AT&T has declared an end to fiber broadband expansion and slashed spending forecasts from the $23 billion the company spent this year to as little as $20 billion next year, despite claiming it would dramatically expand its 5G service to over two dozen cities over the next 12 months.

In a recent conference call with investors, AT&T CEO Randall Stephenson said “now it’s time to reap the rewards of what we’ve been doing [and] begin to reward to shareholders these investments that we’ve been making over the last few years.”

Over the next three years, AT&T will pay shareholders $45 billion in dividends and spend $30 billion on buying back shares of AT&T stock to retire debt racked up buying Time Warner (Entertainment). In fact, AT&T will devote 50-75% of its free cash flow exclusively on retiring shares of AT&T stock, which is expected to benefit shareholders.

Verizon reported spending $4.4 billion in the third quarter on network upgrades, approximately $100 million less than expected. That is a concern because Verizon is trying to expand its costly 5G network, but is not devoting the investment dollars required to make such an upgrade happen without cutting investments elsewhere in the company. Verizon has told Wall Street analysts to expect stable Capex spending of $17-18 billion annually for 2019-2021. That will either mean Verizon’s 5G expansion will be modest or the phone company will have to slash investments in other areas, such as wireline, fiber to the home, or business services.

Many analysts expect 5G will be a top spending priority for AT&T and Verizon over the next several years, leaving little room in budgets for upkeep of the company’s legacy landline networks or its other products. Charter and Comcast have effectively stopped spending on large upgrade projects, also as part of improved profit-taking.

The spending realities are in direct conflict with the promises made by Republican members of the FCC. Trump-picked FCC Chairman Ajit Pai repeatedly claimed that banishing net neutrality would lead to significant increases in investment by the nation’s top telecom companies. In fact, the opposite has happened.

Sen. Joe Manchin (D-W.V.) wants every West Virginian to test their internet speed and send his office the results to ferret out deceptive service maps and uncover more information about the state’s ongoing broadband problems.

“We’re urging everyone to do these speed tests,” Manchin told residents in Lewis County last Sunday. “We need to know, and people need to be involved in West Virginia, if they ever want to have broadband, high-speed internet and cell service. This is what we’re fighting for.”

Manchin is on a mission to debunk FCC Chairman Ajit Pai’s claims that rural broadband has grown under Pai’s leadership. Manchin believes the FCC’s broadband coverage maps are wildly inaccurate, advertised speeds are not met, and many rural residents in the state are left without internet access.

The senator intends to send the speed test results to Pai’s office, and he wants consumers to use the FCC’s own free speed test app (for Android and iOS) to “cover [Pai]” with piles of speed test results shining a light on the problem.

“There’s an FCC app that you can download on your phone,” Wes Kungel, legislative director for Manchin’s office told WVNews. “If you download that, you can hit a little button and it will tell you your speeds. If you email or mail that to our office, we will put it in a letter and send it personally to Chairmen Pai.”

Sen. Manchin

The ongoing problem with faulty broadband service maps have allowed a select group of telecom companies (many responsible for the data used by those maps) to receive federal funding to expand their own broadband businesses while preventing others from getting funding claiming the new providers would receive government funding to overlap their existing service areas.

“This is really where it all started,” he said. “[People] contacted us a few years back and basically they weren’t getting the coverage. They could not get coverage because [the FCC] said the maps showed that there was already coverage here. So we came out and did the speed tests.”

Manchin argues that West Virginia is among the most broadband-challenged states and inaccurate maps will result in the state not getting its fair share of the estimated $20 billion the FCC plans to distribute in rural America to improve broadband service.

“There’s no state that needs it more than rural West Virginia,” Manchin added. “A ‘urban’ community is 50,000 (people) or more. We don’t have one city in West Virginia with 50,000 so we have nothing to compare it to. We are all rural and we’re going to have to fight for every dollar that we can to get connected.”

West Virginians can submit their speed test results to Sen. Manchin’s office by following this link.

WASHINGTON (Reuters) – A U.S. appeals court on Tuesday rejected the decision of the Federal Communications Commission to declare that states cannot pass their own net neutrality laws and ordered the agency to review some key aspects of its 2017 repeal of rules set by the Obama administration.

The court, which upheld most of the FCC’s December 2017 order, said the agency “failed to examine the implications of its decisions for public safety” and must also review how its decision will impact a government subsidy program for low-income users.

The decision means the more than 10-year-old debate over net neutrality will continue to drag on for months or more likely years. The ruling is a setback to the Trump administration’s efforts to reverse rules adopted under former President Barack Obama in 2015 which barred internet service providers from blocking or throttling traffic, or offering paid fast lanes, also known as paid prioritization.

FCC Chairman Ajit Pai said the decision affirmed the FCC’s “decision to repeal 1930s utility-style regulation of the internet. A free and open internet is what we have today. A free and open internet is what we’ll continue to have going forward.”

Pai added that the FCC would address “the narrow issues that the court identified.”

Championed by large tech companies and consumer groups, net neutrality was formally adopted by the FCC in 2015. Major telecommunications companies argued it limited their ability to offer new services to content providers, and under the Trump administration, the FCC overturned the policy.

California passed sweeping state net neutrality protections but agreed not to enforce the measure pending the court challenge.

The court threw out the part of the order that barred all states from setting net neutrality rules and argued that states were preempted by federal law.

“The commission lacked the legal authority to categorically abolish all 50 states statutorily conferred authority to regulate intrastate communications,” the court said.

The FCC could still make “provision-specific arguments” to seek to block individual aspects of state net neutrality rules.

Judge Stephen Williams wrote in his dissenting opinion that “On my colleagues’ view, state policy trumps federal; or, more precisely, the most draconian state policy trumps all else.”

The Trump administration rules were a win for internet providers like AT&T Inc, Comcast Corp and Verizon Communications Inc but opposed by companies such as Facebook Inc, Amazon.com Inc and Alphabet Inc.

Reporting by David Shepardson; Editing by Paul Simao and Lisa Shumaker