ISPs Are Violating the Old Net Neutrality Rules

It’s been just over a year since the FCC repealed net neutrality. The FCC’s case is being appealed and oral arguments are underway in the appeal as I write this blog. One would have to assume that until that appeal is finished that the big ISPs will be on their best behavior. Even so, the press has covered a number of ISP actions during the last year that would have violated net neutrality if the old rules were still in place.

It’s not surprising that the cellular carriers were the first ones to violate the old net neutrality rules. This is the most competitive part of the industry and the cellular carriers are not going to miss any opportunity to gain a marketing edge.

AT&T is openly advertising that cellular customers can stream the company’s DirecTV Now product without it counting against monthly data caps. Meanwhile, all of the competing video services like Sling TV, Paystation Vue, YouTube TV, Netflix or Amazon Prime count against AT&T data caps – and video can quickly kill a monthly data plan download allotment. AT&T’s behavior is almost a pure textbook example of why net neutrality rules were put into place – to stop ISPs from putting competitor’s products at an automatic disadvantage. AT&T is the biggest cellular provider in the country and this creates a huge advantage for DirecTV Now. All of the major cellular carriers are doing something similar in allowing some video to not count against the monthly data cap, but AT&T is the only one pushing their own video product.

In November a large study of 100,000 cellphone users by Northeastern University and the University of Massachusetts showed that Sprint was throttling Skype. This is not something that the carrier announced, but it’s a clear case of pushing web traffic to the ‘Internet slow lane’. We can only speculate why Sprint would do this, but regardless of their motivation this is clearly a violation of net neutrality.

This same study showed numerous incidents where all of the major cellular carriers throttled video services at times. YouTube was the number one target of throttling, followed by Netflix, Amazon Prime, and the NBC Sports app. This throttling wasn’t as widespread as Sprint’s throttling of Skype, but the carriers must have algorithms in their network that throttles specific video traffic when cell sites get busy. In contrast to the big carriers, the smaller independent cellular carrier C.Spire had almost no instances of differentiation among video streams.

Practices that might violate net neutrality were not limited to cellular carriers. For example, Verizon FiOS recently began giving free Netflix for a year to new broadband customers. AT&T also started giving out free HBO to new customers last year. This practice is more subtle than the cellular carrier practice of blocking or throttling content. One of the purposes of net neutrality was for ISPs to not discriminate against web traffic. By giving away free video services the landline broadband companies are promoting specific web services over competitors.

This doesn’t sound harmful, but the discussions in the net neutrality order warned about a future where the biggest ISPs would partner with a handful of big web services like Facebook or Netflix to the detriment of all smaller and start-up web services. A new video service will have a much harder time gaining customers if the biggest ISPs are giving away their competitors for free.

There are probably more bad practices going on that we don’t know about. We wouldn’t have known about the cellular throttling of services without the big study. A lot of discrimination can be done through the network routing practices of the ISPs, which are hard to prove. For example, I’ve been seeing a growing number of complaints from consumers recently who are having trouble with streaming video services. If you recall, net neutrality first gained traction when it became known that the big ISPs like Comcast were blatantly interfering with Netflix streaming. There is nothing today to stop the big ISPs from implementing network practices that degrade certain kinds of traffic. There is also nothing stopping them from demanding payments from web services like Netflix so that their product is delivered cleanly.

Interestingly, most of the big ISPs made a public pledge to not violate the spirit of net neutrality even if the rules were abolished. That seems to be a hollow promise that was to soothe the public that worried about the end if net neutrality. The FCC implemented net neutrality to protect the open Internet. The biggest ISPs have virtual monopolies in most markets and public opinion is rarely going to change an ISP behavior if the ISP decides that the monetary gain is worth the public unhappiness. Broadband customers don’t have a lot of options to change providers and Cable broadband is becoming a near-monopoly in urban areas. There is no way for a consumer to avoid the bad practices of the cellular companies if they all engage in the same bad practices.

There is at least some chance that the courts will overturn the FCC repeal of net neutrality, but that seems unlikely to me. If the ISPs win in court and start blocking traffic and discriminating against web traffic it does seem likely that some future FCC or Congress will reinstitute net neutrality and starts the fight all over again. Regardless of the court’s decision, I think we are a long way from hearing the last about net neutrality.

Looking Back at the Net Neutrality Order

Chairman Ajit Pai used three arguments to justify ending net neutrality. First, he claimed that the net neutrality rules in effect were a disincentive for big ISPs to make investments and that ending net neutrality would lead to a boom in broadband investment. He also argued that ending net neutrality would free the big ISPs to make broadband investments in rural parts of the US that were underserved. Finally, he argued that the end of net neutrality would spark the growth of telecom jobs. It’s been two years since he used those arguments to justify the repeal net neutrality and it’s easy to see that none of those things have come to pass.

The investment claim is easy to check. The big ISPs are starting to release their 2018 financial results and it looks like capital spending in 2018 – the first year after the end of net neutrality – are lower than in 2017. We’ve already heard from Comcast and Charter and that capital spending was down in 2018 over 2017. The industry analyst MoffettNathanson has already predicted that capital spending for the four biggest cable companies – Comcast, Charter, Altice, and CableONE is expected to drop by 5.8% more in 2019. Anybody who watches the cable companies understands that they all just made big investments in upgrading to DOCSIS 3.1 and that capital spending ought to drop significantly for the next several years.

MoffettNathanson also predicts that wireline capital spending for Verizon and AT&T will drop from $20.3 billion in 2018 to $19.6 billion in 2019. The press is also full of articles lamenting that investments in 5G by these companies is far smaller than hoped for by industry vendors. It seems that net neutrality had no impact on telecom spending (as anybody who has spent time at an ISP could have told you). It’s virtually unheard of for regulation to drive capital spending.

The jobs claim was a ludicrous one because the big companies have been downsizing for years and have continued to do so after net neutrality was repealed. The biggest layoff came from Verizon in October 2018 when the company announced that it was eliminating 44,000 jobs and transferring another 2,500 to India. This layoff is an astronomical 30% of its workforce. AT&T just announced on January 25 that it would eliminate 4,600 jobs, the first part of a 3-year plan to eliminate 10,000 positions. While the numbers are smaller for Comcast, they laid off 500 employees on January 4 and also announced the close of a facility with 405 employees in Atlanta.

Pai’s claim that net neutrality was stopping the big ISPs from investing in underserved areas might be the most blatantly false claim the Chairman has made since he took the Chairman position. The big ISPs haven’t made investments in rural America in the last decade. They have been spending money in rural America in the last few years – but only funds handed to them by the FCC through the CAF II program to expand rural broadband and the FCC’s Mobility Fund to expand rural cellular coverage. I’ve been hearing rumors all over the industry that most of the big ISPs aren’t even spending a lot of the money from those two programs – something I think will soon surface as a scandal. There is no regulatory policy that is going to get the big ISPs to invest in rural America and it was incredibly unfair to rural America for the Chairman to imply they ever would.

Chairman Pai’s arguments for repealing net neutrality were all false and industry insiders knew it at the time. I probably wrote a dozen blog posts about the obvious falsehoods being peddled. The Chairman took over the FCC with the goal of eliminating net neutrality at the top of his wish list and he adopted these three talking points because they were the same ones being suggested by big ISP lobbyists.

What bothers me is this is not how regulation is supposed to work. Federal and state regulatory agencies are supposed to gather the facts on both sides of a regulatory issue, and once they choose a direction they are expected to explain why. The orders published by the FCC and other regulatory bodies act similar to court orders in that the language in these orders are then part of the ongoing record that is used later to understand the ‘why’ behind an order. In later years courts rely on the discussion in regulatory orders to evaluate disputes based upon the new rules. The order that repeals net neutrality sadly repeats these same falsehoods that were used to justify the repeal.

There are always two sides for every regulatory issue and there are arguments that could be made against net neutrality. However, the Chairman and the big ISPs didn’t want to publicly make the logical arguments against net neutrality because they knew these arguments would be unpopular. For example, there is a legitimate argument to made for allowing ISPs to discriminate against certain kinds of web traffic – any network engineer will tell you that it’s nearly mandatory to give priority to some bits over others. But the ISPs know that making that argument makes it sound like they want the right to shuttle customers into the ’slow lane’, and that’s a PR battle they didn’t want to fight. Instead, telecom lobbyists cooked up the false narrative peddled by Chairman Pai. The hoped the public would swallow these false arguments rather than argue for the end of net neutrality on its merits.

Deregulating Text Messaging

“This is one of the oddest dockets I’ve ever seen”. That’s roughly quoting myself several times over the last year as I read some of the things that the current FCC is up to. I find myself saying that again as I read the FCC’s recent docket that proposes to classify SMS text messaging as a Title I information service. Their stated reason for the reclassification is that it will make it easier to fight text message spam, and that stated reason is where the FCC loses me.

Text message spam is a real thing and I’ve gotten some annoying text spam over the last year and I’d sure hate to see my texting inbox get polluted with crap like my email inbox. However, I doubt that you’ll find any technologist in the industry that will tell you that the way to fight spam of any kind is by waving a magic wand and changing the way that something is regulated. The way you fight spam is to put barriers in place to detect and block it – and that is something that only the carriers that control the flow inside of a communications path can do. It’s the solution that the FCC themselves just pushed recently to try to stop robocalling – by demanding that the telephone industry find a solution.

Yet here sits a docket that blindly declares that reclassifying texting as an information service will somehow dissuade bad actors from sending spam text messages. I’m pretty sure that those bad actors don’t really care about the differences between Title I and Title II regulation.

One of the interesting things about this filing is that past FCCs have never definitively said how texting is regulated. Over the years the industry has come to assume that it’s regulated under Title II just like a telephone call – because functionally that’s all a text message is, a telephone call made using texted words rather than a voice call.

To some extent this docket is the first time the FCC has every officially addressed the regulatory nature of text messaging. In the past they made rulings about texting that implies a regulatory scheme, but they never have officially put texting into the Title II category. Now they want to remove it from Title II authority – the first time we’ve ever been told definitively that text is already a Title II service. Here are some of the past FCC treatment of the regulatory nature of text messages:

  • In 1994 the FCC ruled that systems that store and forward telecommunications messages, like SMS texting are ‘interconnected’ services, which at that time were clearly regulated by Title II. But there was no specific statement at the time that texting was a Title II service.
  • In the Telecommunications Act of 1996 the FCC defined a telecommunications service for the first time – which was defined as a service that uses telephones and the PSTN to communicate. The 1996 Act didn’t mention texting, but it clearly fits that definition.
  • In 2003 the FCC declared that text messages were ‘calls’ when the agency implemented the Telephone Consumer Protection Act, which was the same treatment given to other Title II telephone services.
  • In 2007 the FCC included texting as one of the Title II services for which cellular carriers must allow roaming.
  • In 2011 USAC began enforcing the inclusion of text revenues as a Title II interstate revenues that used to assess monies owed to the Universal Service Fund.

All of these regulatory actions implied that texting is a Title II service, although that was never explicitly stated until now, when the FCC wants to reclassify it to be an information service. Reclassification doesn’t pass the ‘quack like a duck test’ because telephone calls and anything like them fit squarely as Title II services. Texting is clearly a type of telephone call and any person on the street will tell you that a text message from a cellphone is just like a phone call using text rather than voice.

Unfortunately, the only conclusion I can draw from this docket is that the FCC has an ulterior motive since their stated reasons for wanting to reclassify texting are pure bosh. There seem to be no obvious reasons for the reclassification. There are no parties in the industry, including the cellular carriers, that have been clamoring for this change. Further, the change will have the negative impact of further shrinking the Universal Service Fund – and expanding rural broadband is supposedly the number one goal of this FCC.

This is disturbing for somebody who has followed regulation for forty years. By definition, regulatory agencies are not supposed to push for changes without first opening an industry-wide discussion about the pros and cons of any suggested changes. Regulators are not supposed to hide the motives for their ideas behind false premises.

The only justification for the FCC’s proposed ruling that I can imagine is that the FCC wants to kill all Title II regulation. It seems they are on a mission to eliminate Title II as a regulatory category to make it hard for future FCC’s to reregulate broadband or to bring back network neutrality.

If that’s their real agenda, then we ought to have an open discussion and ask if we ought to eliminate Title II regulation – that’s how it’s supposed to work. The rules establishing the FCC call for a process where the agency floats new ideas to the world so that all interested parties can weigh in. The FCC is not ready to face the backlash from openly trying to kill Title II regulation, so instead of an open debate we are seeing a series of ridiculous attempts to chip quietly away at Title II regulation without overtly saying that’s their agenda.

In my opinion the time when we ought to stop regulating telephone services is getting closer as technology changes the way that we communicate. But that time is not here and there is still room for monopoly abuse of text messaging. There are a number of examples over the last decade where carriers have blocked text messages – sometimes when they disagreed with the content.

I’m disappointed to have an FCC that is using regulatory trickery to achieve their agenda rather than having a bold FCC that is willing to have the public debate that such a decision deserves. Telephone and related services like text messaging were regulated for many reasons and we ought to examine all of the pros and cons before deregulating them.

I’m guessing that this FCC wants to kill Title II regulation without ever having to tell the public that’s their agenda. I think they want to deregulate text messaging and then point to that deregulation as the precedent to justify deregulating all Title II services without having to suffer to criticism that is sure to come when the public realizes this closes the door on net neutrality.

Small ISPs and the Internet Bill of Rights

Recently Ro Khanna, a California Congressman, worked with some of the biggest thinkers in Silicon Valley to develop what he’s calling an Internet bill of Rights – the document included at the end of this blog. This Bill of Rights lays forth the ideal basic right of privacy that users most want out of the Internet.

This document is possibly the start of the process of discussing regulation for the big Internet companies – something that doesn’t exist today. Currently the Federal Trade Commission theoretically can pursue web companies that rip off the public and the Justice Department can tackle monopoly abuses – but otherwise the web companies are not regulated.

It’s becoming increasingly clear in the last few years that web companies have grown to the size where they value profits first, and any principles that were loosely followed in the early days of the Internet are long gone. There are constant headlines now declaring abuses by web companies. Recent Congressional hearings made it clear that the big companies are misusing customer data – and those hearings probably barely uncovered the tip of the iceberg.

The European Union has begun the process of trying to reel in some of the biggest abuses of the web companies. For example, web companies in Europe now have to disclose to users how they intend to use their data. In this country we’re starting to see sentiment from both Democrats and Republicans that some level of regulation is needed.

It won’t be easy to regulate the big web companies, which are now gigantic corporations. I read recently that there are now more lobbyists in DC working for web companies like Facebook and Google than work for the big telcos and ISPs. There will a major pushback against any form of regulation and it would obviously require a significant bipartisan effort over many years to create any worthwhile regulations.

My guess is that the public wants some sort of protection. Nobody wants their data released to the world through data breaches. Most people want things like their medical and financial records kept private and not peddled between big companies on the web. Almost everybody I know is uneasy with how the big web companies use our personal data.

I think this creates an opportunity for small ISPs. There are aspects of this Bill or Rights that the big ISPs will oppose. They are clearly against net neutrality. All of the big ISPs have purchased companies to help them better mine customer data – they obviously want to grab a slice of the money being made by Google and Facebook off user data. The big ISPs are likely to fight hard against regulation.

It’s virtually impossible for small ISPs to violate any of these principles. That creates an opportunity for small companies to differentiate themselves from the big ISPs. I think small ISPs need to tout that they are for net neutrality, that they value customer privacy and that they will never misuse customer data. I have a few clients that do this, but very few make this one of the key ways to differentiate themselves from the big ISPs they compete against.

I strongly recommend giving this some thought. Supporting consumer data rights can be made a key part of small ISP advertising. Some statements akin to the Internet Bill of Rights can be made prominent on web sites. These concepts should be prominent in your terms of service. These are concepts your customers will like and it shouldn’t be hard for any small ISP to embrace them.

Internet Bill of Rights

The internet age and digital revolution have changed Americans’ way of life. As our lives and the U.S. economy are more tied to the internet, it is essential to provide Americans with basic protections online.

You should have the right:

(1) to have access to and knowledge of all collection and uses of personal data by companies;

(2) to opt-in consent to the collection of personal data by any party and to the sharing of personal data with a third party;

(3) where context appropriate and with a fair process, to obtain, correct or delete personal data controlled by any company and to have those requests honored by third parties;

(4) to have personal data secured and to be notified in a timely manner when a security breach or unauthorized access of personal data is discovered;

(5) to move all personal data from one network to the next;

(6) to access and use the internet without internet service providers blocking, throttling, engaging in paid prioritization or otherwise unfairly favoring content, applications, services or devices;

(7) to internet service without the collection of data that is unnecessary for providing the requested service absent opt-in consent;

(8) to have access to multiple viable, affordable internet platforms, services and providers with clear and transparent pricing;

(9) not to be unfairly discriminated against or exploited based on your personal data; and

(10) to have an entity that collects your personal data have reasonable business practices and accountability to protect your privacy.

The Zero-rating Strategy

The cable companies are increasingly likely to be take a page from the cellular carriers by offering zero-rating for video. That’s the practice of providing video content that doesn’t count against monthly data caps.

Zero-rating has been around for a while. T-Mobile first started using zero-rating in 2014 when it provided its ‘Music Freedom’ plan that provided free streaming music that didn’t count against cellular data caps. This highlights how fast broadband needs have grown in a short time – but when data caps were at 1 GB per month, music streaming mattered.

T-Mobile then expanded the zero-rating in November 2015 to include access to several popular video services like Netflix and Hulu. AT&T quickly followed with the first ‘for-pay’ zero-rating product, called FreeBee Data that let customers (or content providers) pay to zero-rate video traffic. The AT&T plan was prominent in the net neutrality discussions since it’s a textbook example of Internet fast lanes using sponsored data where some video traffic was given preferential treatment over other data.

A few of the largest cable companies have also introduced a form of zero-rating. Comcast started offering what it called Stream TV in late 2015. This service allowed customers to view video content that doesn’t count against the monthly data cap. This was a pretty big deal at the time because Comcast was in the process at the time of implementing a 300 GB monthly data cap and video can easily push households over that small cap limit. There was huge consumer pushback against the paltry data caps and Comcast quickly reset the data cap to 1 terabyte. But the Stream TV plan is still in effect today.

What’s interesting about the Comcast plan is that the company had agreed to not use zero-rating as part of the terms of its merger with NBC Universal in 2011. The company claims that the Stream TV plan is not zero-rating since it uses cable TV bandwidth instead of data bandwidth – but anybody who understands a cable hybrid-fiber coaxial network knows that this argument is slight-of-hand, since all data uses some portion of the Comcast data connection to customers. The prior FCC started to look into the issue, but it was dropped by the current FCC as they decided to eliminate net neutrality.

The big cable companies have to be concerned about the pending competition with last-mile 5G. Verizon will begin a slow roll-out of its new 5G technology in October in four markets, and T-Mobile has announced plans to begin offering it next year. Verizon has already announced that they will not have any data caps and T-Mobile is also unlikely to have them.

The pressure will be on the cable companies to not charge for exceeding data caps in competitive markets. Cable companies could do this by eliminating data caps or else by pushing more video through zero-rating plans. In the case of Comcast, they won’t want to eliminate the data caps for markets that are not competitive. They view data caps as a potential source of revenue. The company OpenVault says that 2.5% of home currently exceed 1 TB in monthly data usage, up from 1.5% in 2017 – and within a few years this could be a lucrative source of extra revenue.

Comcast and the other big cable companies are under tremendous pressure to maintain earnings and they are not likely to give up on data caps as a revenue source. They are also likely to pursue sponsored video plans where the video services pay them to provide video outside of data caps.

Zero-rating is the one net neutrality practice that many customers like. Even should net neutrality be imposed again – through something like the California legislation or by a future FCC – it will be interesting to see how firmly regulators are willing to clamp down on a practice that the public likes.

Should We Regulate Google and Facebook?

I started to write a blog a few weeks ago asking the question of whether we should be regulating big web companies like Google and Facebook. I put that blog on hold due to the furor about Cambridge Analytica and Facebook. The original genesis for the blog was comments made by Michael Powell, the President and CEO of NCTA, the lobbying arm for the big cable companies.

At a speech given at the Cable Congress in Dublin, Ireland Powell said that edge providers like Facebook, Google, Amazon and Apple “have the size, power and influence of a nation state”. He said that there is a need for antitrust rules to reign in the power of the big web companies. Powell put these comments into a framework of arguing that net neutrality is a weak attempt to regulate web issues and that regulation ought to instead focus on the real problems with the web for issues like data privacy, technology addiction and fake news.

It was fairly obvious that Powell was trying to deflect attention away from the lawsuits and state legislation that are trying to bring back net neutrality and Title II regulations. Powell did make same some good points about the need to regulate big web companies. But in doing so I think he also focuses the attention back on ISPs for some of the same behavior he sees at the big web providers.

I believe that Powell is right that there needs to be some regulation of the big edge providers. The US has made almost no regulations concerning these companies. It’s easy to contrast our lack of laws here to the regulations of these companies in the European Union. While the EU hasn’t tackled everything, they have regulations in place in a number of areas.

The EU has tackled the monopoly power of Google as a search engine and advertiser. I think many people don’t understand the power of Google ads. I recently stayed at a bed and breakfast and the owner told me that his Google ranking had become the most important factor in his ability to function as a business. Any time they change their algorithms and his ranking drops in searches he sees an immediate drop-off in business.

The EU also recently introduced strong privacy regulations for web companies. Under the new rules consumers must opt-in the having their data collected and used. In the US web companies are free to use customer information in any manner they choose – and we just saw from the example of Cambridge Analytica how big web companies like Facebook monetize consumer data.

But even the EU regulations are going to have little impact if people grant the ability for the big companies to use their data. One thing that these companies know about us is that we willingly give them access to our lives. People take Facebook personality tests without realizing that they are providing a detailed portrait of themselves to marketeers. People grant permissions to apps to gather all sorts of information about them, such a log of every call made from their cellphone. Recent revelations show that people even unknowingly grant the right to some apps to read their personal messages.

So I think Powell is right in that there needs to be some regulations of the big web companies. Probably the most needed regulation is one of total transparency where people are told in a clear manner how their data will be used. I suspect people might be less willing to sign up for a game or app if they understood that the app provider is going to glean all of the call records from their cellphone.

But Powell is off base when he thinks that the actions of the edge providers somehow lets ISPs off the hook for similar regulation. There is one big difference between all of the edge providers and the ISPs. Regardless of how much market power the web companies have, people are not required to use them. I dropped off Facebook over a year ago because of my discomfort from their data gathering.

But you can’t avoid having an ISP. For most of us the only ISP options are one or two of the big ISPs. Most people are in the same boat as me – my choice for ISP is either Charter or AT&T. There is some small percentage of consumers in the US who can instead use a municipal ISP, an independent telco or a small fiber overbuilder that promises not to use their data. But everybody else has little option but to use one of the big ISPs and is then at their mercy of their data gathering practices. We have even fewer choices in the cellular world since four providers serve almost every customer in the country.

I was never convinced that Title II regulation went far enough – but it was better than nothing as a tool to put some constraints on the big ISPs. When the current FCC killed Title II regulation they essentially set the ISPs free to do anything they want – broadband is nearly totally unregulated. I find it ironic that Powell wants to see some rules the curb market abuse for Google and Facebook while saying at the same time that the ISPs ought to be off the hook. The fact is that they all need to be regulated unless we are willing to live with the current state of affairs where ISPs and edge providers are able to use customer data in any manner they choose.

Is AT&T Violating Net Neutrality?

I got a text on my AT&T cellphone last month that told me that my wireless plan now includes sponsored data. Specifically they told me that I could now stream movies and other content from DirecTV or U-Verse TV without the video counting against my monthly data cap. This has been available to AT&T post-paid customers for a while, but now is apparently available to all customers. What I found most interesting about the message was that it coincided with the official end of net neutrality.

AT&T is not the first cellular company to do this. Verizon tried this a few years ago, although that attempt was largely unsuccessful because they didn’t offer much content that people wanted to watch. T-Mobile does something similar with their Binge-on program, but since most of their data plans are unlimited, customers can watch anything on their phones, not just the Binge-on video.

The sponsored data from AT&T would be a direct violation of net neutrality if it was still in effect and is a textbook example of paid prioritization. By excusing the DirecTV content from cellular data caps they have created an advantage for DirecTV compared to competitors. It doesn’t really matter that AT&T also happens to own DirecTV, and I imagine that AT&T is now shopping this same idea around to other video providers.

So what is wrong with what AT&T is doing? Certainly their many customers that buy both AT&T cellphones and DirecTV will like the plan. Cellular data in the US is still some of the most expensive data in the world and letting customers watch unlimited video from a sponsored video provider is a huge benefit to customers. Most people are careful to not go over monthly data limits, and that means they carefully curtail watching video on cellphones. But customers taking advantage of sponsored video are going to watch video that would likely have exceeded their monthly data cap – it doesn’t take more than a handful of movies to do that.

AT&T has huge market power with almost 140 million cellphones users on their network at the end of last year. Any video provider they sponsor is going to gain a significant advantage over other video providers. AT&T customers that like watching video on their cellphones are likely to pick DirecTV over Comcast or any other video provider.

It’s also going to be extremely tempting for AT&T to give prioritized routing to DirecTV video – what means implementing the Internet fast lane. AT&T is going to want their cellular customers to have a quality experience, and they can do that by making sure that DirecTV video has the best connections throughout their network. They don’t necessarily have to throttle other video to make DirecTV better – they can just make sure that DirectTV video gets the best possible routing.

I know to many people the AT&T plan is going to feel somewhat harmless. After all, they are bundling together their own cellular and video products. But it’s a short step from here for AT&T to start giving priority to content from others who are willing to pay for it. It’s not to hard to imagine them offering the same plan to Netflix, YouTube or Facebook.

If this plan expands beyond AT&T’s own video, we’ll start seeing the negative impacts of paid prioritization:

  • Only the biggest companies like Netflix, Facebook or Google can afford to pay AT&T for the practice. This is going to shut out smaller video providers and start-ups. Already in the short history of the web we’ve seen a big turnover in the popular platforms on the web – gone or greatly diminished are earlier platforms like AOL, CompuServe and Prodigy. But with the boost given by paid prioritization the big companies today will get a step-up to remain as predominant players on the web. Innovation is going to be severely hampered.
  • This is also the beginning of a curated web where many people only see the world through the filter of the predominant web services. We already see that phenomenon a lot today, but when people are funneled to only using the big web services this will grow and magnify.
  • It’s not hard to imagine the next step where we see reduced price data plans that are ‘sponsored’ by somebody like Facebook. Such platforms will likely make it a challenge for customers to step outside their platform. And that will lead to a segmentation and slow death of the web as we know it.

Interestingly, the Tom Wheeler FCC told AT&T that this practice was unacceptable. But through the change of administration AT&T never stopped the practice and is now expanding it. It’s likely that courts are going to stay some or all of the net neutrality order until the various lawsuits on the issue get resolved. But AT&T clearly feels emboldened to move forward with this, probably since they know the current FCC won’t address the issue even if net neutrality stays in effect.

Broadband Regulation in Limbo

The recent ruling earlier this week by the US Court of Appeals for the 9th Circuit highlights the current weak state of regulations over broadband. The case is one that’s been around for years and stems from AT&T’s attempt to drive customers off of their original unlimited cellphone data plans. AT&T began throttling unlimited customers when they reached some unpublished threshold of data use, in some cases as small as 2 GB in a month. AT&T then lied to the FCC about the practice when they inquired. This case allows the FTC suit against AT&T to continue.

The ruling demonstrates that the FTC has some limited jurisdiction over common carriers like AT&T. However, the clincher came when the court ruled that the FTC only has jurisdiction over issues where the carriers aren’t engaging in common-carrier services. This particular case involves AT&T not delivering a product they promised to customers and thus falls under FTC jurisdiction. But the court made it clear that future cases that involve direct common carrier functions, such as abuse of net neutrality would not fall under the FTC.

This case clarifies the limited FTCs jurisdiction over ISPs and contradicts the FCC’s statements that the FTC is going to be able to step in and take their place on most matters involving broadband. The court has made it clear that is not the case. FCC Chairman Ajit Pai praised this court ruling and cited it as a good example of how the transition of jurisdiction to the FTC is going to work as promised. But in looking at the details of the ruling, that is not true.

This court ruling makes it clear that there is no regulatory body now in charge of direct common carrier issues. For instance, if Netflix and one of the ISPs get into a big fight about paid prioritization there would be nowhere for Netflix to turn. The FCC would refuse to hear the case. The FTC wouldn’t be able to take the case since it involves a common carrier issue. And while a court might take the case, they would have no basis on which to make a ruling. As long as the ISP didn’t break any other kinds of laws, such as reneging on a contract, a court would have no legal basis on which to rule for or against the ISPs behavior.

That means not only that broadband is now unregulated, it also means that there is no place for some body to complain against abuse by ISPs until the point where that abuse violates some existing law. That is the purest definition of limbo that I can think of for the industry.

To make matters worse, even this jumbled state of regulation is likely to more muddled soon by the courts involved in the various net neutrality suits. Numerous states have sued the FCC for various reasons, and if past practice holds, the courts are liable to put some or all of the FCC’s net neutrality decision on hold.

It’s hard to fathom what that might mean. For example, if the courts were to put the FCC’s decision to cancel Title II regulation on hold, then that would mean that Title II regulation would still be the law of the land until the net neutrality lawsuits are finally settled. But this FCC has made it clear that they don’t want to regulate broadband and they would likely ignore such a ruling in practice. The Commission has always had the authority to pick and choose cases it will accept and I’m picturing that they would refuse to accept cases that relied on their Title II regulation authority.

That would be even muddier for the industry than today’s situation. Back to the Netflix example, if Title II regulation was back in effect and yet the FCC refused to pursue a complaint from Netflix, then Netflix would likely be precluded from trying to take the issue to court. The Netflix complaint would just sit unanswered at the FCC, giving Netflix no possible remedy, or even a hearing about their issues.

The real issue that is gumming up broadband regulation is not the end of Title II regulation. The move to Title II regulation just became effective with the recent net neutrality decision and the FCCs before that had no problem tackling broadband issues. The real problem is that this FCC is washing their hands of broadband regulation, and supposedly tossed that authority to the FTC – something the court just made clear can’t work in the majority of cases.

This FCC has shown that there is a flaw in their mandate from Congress in that they feel they are not obligated to regulate broadband. So I guess the only fix will be if Congress makes the FCC’s jurisdiction, or lack of jurisdiction clear. Otherwise, we couldn’t even trust a future FCC to reverse course, because it’s now clear that the decision to regulate or not regulate broadband is up to the FCC and nobody else. The absolute worst long-term outcome would be future FCCs regulating or not regulating depending upon changes in the administration.

My guess is that AT&T and the other big ISPs are going to eventually come to regret where they have pushed this FCC. There are going to be future disputes between carriers and the ISPs are going to find that the FCC can not help them just like they can’t help anybody complaining against them. That’s a void that is going to serve this industry poorly.

AT&T and Net Neutrality

The big ISPs know that the public is massively in favor of net neutrality. It’s one of those rare topics that polls positively across demographics and party lines. Largely through lobbying efforts of the big ISPs, the FCC not only killed net neutrality regulation but they surprised most of the industry by walking away from regulating broadband at all.

We now see states and cities that are trying to bring back net neutrality in some manner. A few states like California are creating state laws that mimic the old net neutrality rules. Many more states are limiting purchasing for state telecom to ISPs that don’t violate net neutrality. Federal Democratic politicians are creating bills that would reinstate net neutrality and force it back under FCC jurisdiction.

This all has the big ISPs nervous. We certainly see this in the way that the big ISPs are talking about net neutrality. Practically all of them have released statements talking about how much they support the open Internet. These big companies already all have terrible customer service ratings and they don’t want to now be painted as the villains who are trying to kill the web.

A great example is AT&T. The company’s blog posted a letter from Chairman Randall Stephenson that makes it sound like AT&T is pro net neutrality. It fails to mention how the company went to court to overturn the FCC’s net neutrality decision or how much they spent lobbying to get the ruling overturned.

AT&T also took out full-page ads in many major newspapers making the same points. In those ads the company added a new talking point that net neutrality ought to also apply to big web companies like Facebook and Twitter. That is a red herring because web companies, by definition, can’t violate net neutrality since they don’t control the pipe to the customers. Many would love to see privacy rules that stop the web companies from abusing customer data – but that is a separate issue than net neutrality. AT&T seems to be making this point to confuse the public and deflect the blame away from themselves.

Stephenson says that AT&T is favor of federal legislation that would ensure net neutrality. But what he doesn’t say is that AT&T favors a bill the big companies are pushing that would implement a feel-good watered-down version of net neutrality. Missing from that proposed law (and from all of AT&T’s positions) is any talk of paid priority – one of the three net neutrality principles. AT&T has always wanted paid prioritization. They want to be able to charge Netflix or Google extra to access their networks since those two companies are the largest drivers of web traffic.

In my mind, abuse of paid prioritization can break the web. ISPs already charge their customers enough money to fully cover the cost of the network needed to support broadband. Customers with unlimited data plans, like most landline connections, have the right to download as much content as they want. The idea of an AT&T then also charging the content providers for the privilege to get to customers is a terrible idea for a number of reasons.

Consider Netflix. It’s likely that they would pass any fees paid to AT&T on to customers. And in doing so, AT&T has violated the principle of non-discrimination of traffic, albeit indirectly, by making it more expensive for people to use Netflix. AT&T will always say that are not the cause of a Netflix rate increase – but AT&T is able to influence the market price of web services, and in doing so discriminate against web traffic.

The other problem with paid prioritization is that it is a barrier to the next Netflix. New companies without Netflix’s huge customer base could not afford the fees to connect to AT&T and other large ISPs. And that barrier will stop the next big web company from launching.

I’ve been predicting that the ISPs are not going to do anything that drastically violates net neutrality for a while. They are going to be cautious about riling up the public and legislators since they understand that Congress could reinstate both net neutrality and broadband regulation at any time. The ISPs are enjoying the most big-company friendly FCC there has ever been, and they are getting everything they want out of them.

But big ISPs like AT&T know that the political and regulatory pendulum can and will likely swing the other way. Their tactic for now seems to be to say they are for net neutrality while still working to make sure it doesn’t actually come back. So we will see more blogs and newspaper ads and support for watered-down legislation. They are clearly hoping the issue loses steam so that the FCC and administration don’t reinstate rules they don’t want. But they realistically know that they are likely to be judged by their actions rather than their words, so I expect them to ease into practices that violate net neutrality in subtle ways that they hope won’t be noticed.

Challenging the Net Neutrality Order

It looks like there are going to be a number of challenges to the FCC’s recent repeal of Title II regulation and net neutrality. Appealing FCC decisions is normal for controversial rulings and the big telcos and cable companies have routinely challenged almost every FCC decision they haven’t liked.

The FCC voted to repeal Title II regulation on December 14th, but just released the order on Friday. As expected, there were some wording changes made that the FCC hopes will help during the expected legal challenges. The time clock for any challenges will start when the order is published in the Federal Register. The FCC order goes into effect 60 days later and any court challenges must be filed within that two-month window.

When FCC rules are challenged, it’s not unusual for a court to put a stay on some parts, or even make an entire new ruling until the legal issues are sorted out. This happened a few years back when Verizon challenged the FCC’s first net neutrality order and the courts stayed all of the important parts of that ruling before eventually ruling that the FCC didn’t have the authority to make the rules as they did.

It appears that challenges are going to come from a number of different directions. First, there are states that have said they will challenge on procedural issues. This is a tactic often taken by the big ISPs, and generally if the courts agree that the FCC didn’t follow the right procedures in this docket they will then rule that the agency has to start the whole process over again. That alone would not change the outcome of the proceeding, but it could add another year until the FCC’s order goes into effect. I wonder if this kind of delay is meaningful because it’s likely that this FCC won’t enforce any net neutrality ‘violations’ during a reboot of the rules process.

The Attorney General of New York has an interesting appeal tactic. He is claiming that the FCC ignored the fact that there were millions of fake comments made in the docket – some for and others against the proposed rules. New York is suing the FCC over the issue and expects some other states to join in the lawsuit. This would be a unique procedural challenge and would be another way to have to reset and start the whole process over again.

Legislators in California, New York and Washington are planning to tackle the issue in a different way. Legislators are proposing to create a set of state net neutrality laws that basically mimic what was just repealed by the FCC. These states would not be directly challenging the FCC order and it would require some third party like a big ISP to challenge the state laws through the court system. Such a process might take a long time since it might have to go through several layers of courts, and might even end up at the US Supreme Court. State’s rights have been a common way to challenge FCC rulings ad there have been numerous fights between states and the FCC any time that Congress has created ambiguity in telecom laws.

The hope of these state legislators is that the state rules will be allowed to stand. They know that if ISPs and other tech companies have to follow net neutrality laws in large states like California that they are more likely to follow them in the whole country. A similar State / Federal battle is also underway on a different issue and twenty states are considering enactment of state privacy laws to replace ones preempted by Congress.

Another challenge to the FCC’s decision will come from democrats in Congress who are trying to use the Congressional Review Act (CRA) rules to challenge the FCC’s ruling. This is a set of rules that allow Congress to reverse rulings from administrative agencies like the FCC with a simple majority and has been used effectively recently by republicans in a number of ways. With a 51-49 Republican majority it would only take a few republican defections to maintain at least some aspects of net neutrality. The make-up of the Congress might also change with the elections later this year – meaning that Congress might change the rules in the middle of all of the various appeals.

One thing is for certain – this FCC ruling is not going to be easily implemented and I’m guessing that during the next sixty days we will see a number of creative challenges used to appeal the FCC’s ruling. It could easily be a few years before these issues are resolved through the courts.