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The Trump Administration appointed a Republican majority to the FCC that wiped away or repealed most of the accomplishments of the FCC under Chairman Wheeler, including net neutrality.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“In 2017, the Trump FCC repealed the Open Internet Rule at the request of the network companies.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.”

Nearly every wireless provider in the United States is intentionally slowing down your data service, detrimentally affecting smartphone apps and video streaming.

That is the conclusion of researchers at Northeastern University, University of Massachusetts — Amherst and Stony Brook University, studying the results of more than 100,000 Wehe app users that have run 719,417 tests in 135 countries verifying net neutrality compliance, before and after the open internet rules were repealed in the U.S. earlier this year.

The raw data collected from the app is used as part of a validated, peer-reviewed method of determining which ISPs are throttling their customers’ connections and what services are being targeted.

Nearly Every Mobile Provider Is Throttling Your Speed, Even on “Unlimited” Plans

The researchers concluded that nearly every wireless provider is throttling at least one streaming video service, some reducing speeds the most for customers on budget priced plans while higher value customers are throttled less. No ISP consistently throttled all online video, setting up an unfair playing field for companies that benefit from not being throttled against those that are. Few customers noticed much difference in the performance of streaming video  after the repeal of net neutrality in the U.S., largely because the wireless companies involved — AT&T, Verizon, T-Mobile, Sprint and others — were already quietly throttling video.

“Our data shows that all of the U.S. Cellular ISPs that throttled after June 11th were already throttling prior to this date,” the researchers wrote. “In short, it appears that U.S. Cellular ISPs were ignoring the [former FCC Chairman Thomas] Wheeler FCC rules pertaining to ‘no throttling’ while those rules were still in effect.”

Summary of Detected Throttling

For each ISP, the researchers included tests only where a user’s set of tests indicated differentiation (speed throttling of specific apps or services) for at least one app and did not detect differentiation for at least one other app. This helps to filter out many false positives. As a result, the number of tests in this table is substantially lower than the total number of tests Wehe users ran. The researchers sorted the Cellular ISPs based on the number of tests from users of each ISP. If they did not detect differentiation, researchers used the entry “Not detected.” The researchers claim that offers enough evidence that throttling is not happening. In some cases researchers do not have enough tests to confirm whether there is throttling, indicated by “No data.” 

The table has two column groups for the results: before the new FCC rules took effect on June 11th, and after. If behavior changed from after June 11th, it is highlighted in bold. 

Sprint’s Skype Throttle

The researchers found that video was not the only service impacted by speed throttles. Sprint (and its subsidiary, prepaid provider Boost), for example, is actively throttling Skype.

“This is interesting because Skype’s telephony service directly competes with the telephony service provided by Sprint,” the researchers wrote. But curiously, the throttle almost entirely impacts Android phone users, while iOS devices have less than a 4% chance of being speed throttled. But isolating the exact trigger for throttling remains elusive, the researchers claim.

“While we have strong evidence of Skype throttling from our users’ tests, we could not reproduce this throttling with a data plan that we purchased from Sprint earlier this year,” the researchers admit. “This is likely because it affects only certain subscription plans, but not the one that we purchased.”

When asked to comment, Sprint said: “Sprint does not single out Skype or any individual content provider in this way.” The test results indicate otherwise, suggest the researchers.

T-Mobile’s “Boosting” Throttle Can Mess Up Streaming Video

Some providers, like T-Mobile, attempt to sell their throttled speeds as pro-consumer. In return for reduced definition video, customers are free to watch more online content over their portable devices without it counting against a data cap. But T-Mobile’s video throttle is unique among providers as it initially allows a short burst of regular speed to buffer the first few seconds of a streamed video before quickly throttling video playback speed. Many video players do not expect to see initial robust speeds quickly and severely throttled. Consumers report video playback is often interrupted, sometimes several times, as the player gradually adapts to the low-speed, throttled connection. Consumers receive lower quality video as a consequence.

T-Mobile Plays Favorites

Through extensive testing, research found throttling begins after a certain number of bytes have been transferred, and it is not based strictly on time; below is a list of the detected byte limits for the “boosted” (i.e., unthrottled video streaming) period.

The impact of T-Mobile’s “boosting” speed throttle. Initial speeds of streaming video reach 25 Mbps before being throttled to a consistent 1.5 Mbps.

More concerning to the researchers is their finding that video apps are treated differently by T-Mobile.

“T-Mobile throttles YouTube without giving it a boosting period, while T-Mobile does not throttle Vimeo at all,” the researchers report. “Such behavior highlights the risks of content-based filtering: there is fundamentally no way to treat all video services the same (because not all video services can be identified), and any additional content-specific policies — such as boosting — can lead to unfair advantages for some providers, and poor network performance for others.”

The team of researchers had just one conclusion after reviewing the available data.

“Net neutrality violations are rampant, and have been since we launched Wehe,” the researchers report. “Further, the implementation of such throttling practices creates an unlevel playing field for video streaming providers while also imposing engineering challenges related to efficiently handling a variety of throttling rates and other behavior like boosting. Last, we find that video streaming is not the only type of application affected, as there is evidence of Skype throttling in our data. Taken together, our findings indicate that the openness and fairness properties that led to the Internet’s success are at risk in the U.S.”

The team “strongly encourages” policymakers to rely on fact-based data to make informed decisions about internet regulations, implying that provider-supplied data about net neutrality policies may not reveal the full impact of speed throttles and other traffic favoritism that is common where net neutrality protections do not exist.

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

Blumenthal

Three Democratic senators are calling for an investigation into why nearly 10 million phony net neutrality comments were allowed to be included on the record as part of the Republican majority decision to rescind the rules in early 2018.

Sens. Ed Markey (Mass.), Richard Blumenthal (Conn.), and Brian Schatz (Hawaii), jointly signed a letter addressed to the FCC’s Inspector General claiming the net neutrality matter was likely clouded by industry-funded lobbyists and astroturf groups, possible Russian interference, and intransigence by Republican FCC officials unwilling or unable to investigate the phony comments.

The New York Attorney General’s office has made significant progress in its own independent investigation, identifying 14 so-called “groups of interest” that could have subverted the net neutrality debate with fake comments from non-existent individuals, comments from those whose identities had been stolen, duplicate comments, and signatures on questionnaires and petitions that may have misled the public about the definition of net neutrality.

New York subpoenaed industry-friendly special interest, lobbying, and public strategy groups including: Broadband for America, the Center for Individual Freedom, Century Strategies, CQ Roll Call, LCX Digital, Media Bridge, the Taxpayers Protection Alliance and Vertical Strategies.

Markey

Freedom of Information requests and the ongoing investigation uncovered multiple historical instances of manipulation and potentially counterfeit comments, according to the senators:

• CQ Roll Call submitted “millions of individual comments” on behalf of a paid client in the broadband privacy docket.
• In 2014, Broadband for America claimed many community organizations, veterans groups, and small businesses were opposed to net neutrality, but in fact these groups had no position on the issue and in some instances claimed they never heard of Broadband for America.
• Media Bridge was involved in assisting a group called American Commitment to flood the net neutrality docket with duplicative comments hostile to net neutrality. Media Bridge sells companies on manipulating the public debate on issues, claiming “if your organization wants to stop ‘showing’ and start dominating the issues, pick up the phone and give Media Bridge a call.”
• The Center for Individual Freedom was responsible for submitting comments that repeated the inflammatory phrase, “unprecedented regulatory power the Obama administration imposed on the internet.” A Wall Street Journal investigation found that 72% of those comments may have been falsely submitted.

Schatz

“The Commission’s apparent disinterest in investigating fraudulent comments risks undermining public trust in the FCC’s rule-making process. Presently, the only efforts at accountability have been led by the New York State Attorney General and the Government Accountability Office (GAO), prompted by a request from Congress,” the senators’ letter reads. “The status of cooperation with both is unclear, and the FCC has previously resisted requests from the NY AG. Moreover, while journalists have sought to conduct their own research through FOIA requests, the Commission has ignored those requests and withheld documents under dubious exemption claims. Given the seriousness of this issue, the FCC should respond transparently and thoroughly, and fully cooperate with all attempts to investigate fraudulent comments.”

The senators are requesting the FCC’s Inspector General investigate:

• What policies are in place at the FCC to investigate and address fake comments?
• When did the FCC first become aware of the fraudulent comments?
• Was the FCC aware of the sources of these comments, and did they investigate them?
• Is the FCC fully cooperating with the NY Attorney General and GAO and is the agency turning over requested documents? If not, why?
• What is the status of FOIA requests at the FCC. Are they being handled in a timely and responsive manner? Were denials and exemptions appropriate?

Pai

Despite the potential for a Democratic Party takeover of the U.S. House of Representatives that is likely to usher in a new era of more aggressive oversight of the Republican-dominated Federal Communications Commission, current chairman Ajit Pai “plans to lead the FCC for the foreseeable future.”

Multichannel News reports Pai is unlikely to leave his post just two years after being appointed to the position by President Donald Trump, despite an ethics controversy over alleged assistance given to Sinclair Broadcast Group to allow the company to acquire more stations despite a federal ownership cap on the number of stations that can be owned by a single entity. Pai also was responsible for a highly controversial decision to cancel net neutrality provisions enacted during the Obama Administration.

“Chairman Pai remains focused on his key priorities, including bridging the digital divide, fostering American leadership in 5G and empowering telehealth advancements,” said Brian Hart, director of the FCC’s office of media relations.

Should both the Senate and House flip to Democrats in next week’s midterm election, Pai’s agenda of deregulation, media consolidation, and elimination of many Obama-era consumer protections would be in peril and subject to determined Congressional oversight.

Pai has taken heat from consumer groups for ending a set-top box competition program that could have forced television providers to accept equipment obtained competitively in the retail market. He also faced criticism for reinstating a program giving UHF TV station owners the opportunity to acquire more stations, directly benefiting Sinclair and allowing it to pursue its since failed merger with Tribune Broadcasting.