The Consequences of No Broadband Regulation

A few weeks ago when the COVID-19 pandemic became apparent we saw the ridiculous spectacle of an FCC chairman begging ISPs to not disconnect customers during a pandemic that would likely throw tens of millions of people out of work. Chairman Pai was reduced to begging because a few years earlier he had voted to strip the FCC if its power to regulate broadband. Before that decision, Chairman Pai could simply have ordered ISPs to be on their best behavior during the pandemic.

This is the most recent demonstrations of the negative impact of deregulating an industry that is controlled by a tiny handful of carriers. In most urban markets the big cable companies have become de facto monopolies – and even most markets that haven’t quite reached monopoly status are, at best, duopolies. There is little broadband competition in most major metropolitan areas, and even in many rural county seats.

It’s not hard to see that the ISP industry thinks it’s bullet-proof against regulation. Consider what’s happened with prices in just the past few years:

  • When comparing data prices around the world, the US has the highest data rates among industrialized countries. Our cellular data prices are nearly the highest anywhere in the world other than a few remote places like Antarctica and war zones.
  • All the major ISPs have raised broadband rates in the last year – when everybody in the industry knows that broadband is already a product with huge margins. These rate increases serve no other purpose other than padding the bottom line. What’s worse is that Wall Street analysts are pushing the ISPs to raise rates much higher.
    • ISP bills are now full of hidden fees. Consumer Reports said last year that the average monthly company-imposed fees for the bills they analyzed averaged to $22.96 for AT&T U-verse, $31.28 for Charter, $39.59 for Comcast, $40.16 for Cox, and $43.79 for Verizon FiOS. They estimate that these fees could total to at least $28 billion per year nationwide.
  • Some ISPs like AT&T, Comcast, Cox, and Mediacom are making big money on data caps. It’s clear that the argument of having data caps to protect networks against overuse has zero basis in fact. Data caps are just a quiet way to raise rates and billings. We now know that over 8% of homes now use over a terabyte of data per month – and that was before the COVID-19 pandemic.
  • ISPs feel brave to openly gouge customers, like Frontier that is billing a monthly fee for WiFi modems that the customers purchased. Even when challenged publicly, the company won’t remove the charges because they don’t fear regulatory retribution.

One of the worst things about the deregulation of broadband is that the average consumer has no idea this happened. The FCC was slick enough to bury the deregulation of broadband in the net neutrality topic. Most people don’t realize that when the FCC killed net neutrality that they also gave away their authority to regulate broadband. People still look to the FCC to correct broadband injustices, without realizing that when they file an FCC complaint against a broadband provider that the agency is powerless to intercede on their behalf.

The FCC will argue that they didn’t kill broadband regulation, but they instead handed the responsibility to the Federal Trade Commission. That claim falls apart quickly once you realize that the FTC has zero authority to regulate industries – they can’t write a rule that applies to all ISPs. The FTC’s power is limited to fining ISPs that have blatantly injured the public – and this must be done by an agency that is also overlooking all other US corporations.

Other than to dole out spectrum for 5G, it’s hard to even justify the FCC any longer. If the US isn’t going to regulate one of the most important industries in the country – many would say during the current pandemic the most important – then perhaps we ought to stop pretending to do so.

Only Congress can fix the problem and they’ve shown no inclination to do so. Congress hasn’t done anything meaningful concerning broadband since the 1996 Telecommunications Act that was signed just as people were subscribing to AOL and Compuserve.

The FCC should be taking drastic action during this pandemic. The agency could have been leading the charge looking for ways to get broadband to kids stuck at home. They could have been taking actions to make it easier for telemedicine in the last few months. They could have reacted to the pandemic with plans to finally solve the broadband gap. Instead, all we got was a powerless FCC Chairman politely asking ISPs to not harm people during a national emergency.

My Telecom Predictions for 2020

Technical Resource Shortage. There is already a growing shortage of fiber resources that includes engineers, construction companies, and fiber consultants. The upcoming $16.4 billion RDOF program will create a resource shortage in 2020 for those who can help companies seek grant funding. Once the grants are awarded, the size of the program will add stress to the resources needed to build networks. Companies that don’t line up their experts early might find themselves without help.

Broadband Price Increases Are Now Routine. The biggest ISPs including Comcast, AT&T, Charter, Verizon, and others have now made it clear that they will be raising broadband rates annually – at least in the majority of their markets where they don’t face real competition. Anybody building a business plan for a new market has to decide how to predict future rate increases.

5G Cellphones Will Prove to be a Joke. At least for 2020, almost everybody who spends extra for a 5G handset is going to be disappointed. The companies deploying millimeter wave spectrum are doing it in limited downtown areas of major cities – and the speeds are only faster outdoors. Carriers implementing low frequencies like 600 MHz and 850 MHz admit that service won’t be any faster than 4G LTE.

FCC Will Eliminate the Last Vestiges of Regulation. The FCC has been actively tearing down regulations affecting the biggest ISPs. The agency has completely deregulated broadband and killed net neutrality. They’re in the process of gutting the use of unbundled network elements They’ve preempted local authority on the placement of wireless infrastructure. Since there is a chance that the administration will change at the end of the year, the FCC will kill as many regulations as they can during 2020.

T-Mobile / Sprint Merger Will be Approved. While there is a lot of opposition to the merger, the reality is that Sprint is not particularly viable as a cellular carrier. The biggest cable companies are entering the cellular markets and will push down urban cellular prices. Dish Networks seems to have a viable plan to become a major carrier if the T-Mobile/Sprint merger is approved.

Courts Will Chip Away at the 5G Pole Attachment Rules. The authority of the FCC to override local policy for the placement of cellular infrastructure boils down to a state versus federal jurisdiction battle. The courts have already said that cellular companies must heed some historic preservation and aesthetics rules. Ultimately the courts will weaken, but not kill the FCC rules, giving cellular carriers more rights than they historically had, but not full carte blanche authority to place devices anywhere.

State Net Neutrality Will Be Almost as Powerful as Federal Policy. It will be hard for the big ISPs to comply with net neutrality rules in California and Washington without complying everywhere. It’s also likely that more states will pass similar net neutrality rules

The RDOF Grants Will Fund Poor Broadband Solutions. Unfortunately, the $16.4 billion RDOF grants will award some grant money to technologies that are not future-proofed. Since the grants can be awarded for technologies that deliver broadband speeds of as little as 25/3 Mbps, we’ll see money go to technology solutions that might be obsolete before the end of the RDOF implementation period.

Cellular Networks Will Continue to Degrade. The nationwide use of cellular data is currently doubling every two years, which is greatly stressing cellular network quality. The cellular carriers need to implement massive numbers of small cells, add new spectrum, and fully implement 5G to keep up with the growing demand. Since those solutions will take 3 – 7 years to implement, cellular network quality is going to get a lot worse before the problems are solved.

Household Bandwidth Usage Will Continue to Grow. OpenVault says the average home now uses 275 gigabytes of data per month, with cord cutting households using 520 GB per month. Opensignal and Cisco both report that household broadband usage continues to grow rapidly, at about 21% annually, or a doubling every 4 years. There is nothing to suggest this growth will be slowing.

Why I am Thankful – 2019

It’s Thanksgiving again and I pause every year to look at the positive events and trends for the small ISP industry. I found a number of things to be thankful for at the end of 2019.

FCC Finally Admits Its Maps Suck. The FCC has begrudgingly admitted that its broadband mapping sucks and is considering several proposals for improving the mapping. It looks like the proposals will fix the ‘edge’ problem, where today rural customers that live close to cities and towns are lumped in with the broadband available in those places. Sadly, I don’t believe there will ever be a good way to measure and map rural DSL and fixed wireless. But fixing the edge problem will be a great improvement.

FCC Released the CBRS Spectrum. The 3.65 GHz, (Citizens Band Radio Spectrum) should provide a boost to rural fixed broadband. There are some restrictions where there is existing government use and there will be frequency sharing rules, so the frequency is not fully unrestricted. The 80 MHz of free spectrum should prove to be powerful in many parts of the country. The FCC is considering other frequencies like white space, C Band, and 6 GHz that also will be a benefit to rural broadband.

States Are Reversing a Few Draconian Laws. Several states have removed barriers for electric cooperatives to get into the broadband business. Arkansas softened a prohibition against municipal broadband. Local politicians are now telling state legislators that broadband is the top priority in communities that don’t have access to good broadband. It’s been obvious for a long time that the best solutions to fix rural broadband are local – it makes no sense to restrict any entity that wants to invest in rural broadband.

The FCC Has Made it Easier for Indian Tribes to Provide Broadband. Various rule changes have streamlined the process of building and owning broadband infrastructure on tribal lands. Many tribes are exploring their options.

Local Broadband Activists Make a Difference. It seems like every community I visit now has a local broadband committee or group that is pushing local politicians to find a solution for poor broadband coverage. These folks make a difference and are prodding local governments to get serious about finding broadband solutions.

The FCC Announces a Monstrous Grant Program. I hope the RDOF grants that will award over $16 billion next year will make a real dent in the rural digital divide. Ideally, a lot of the grants will fund rural fiber, since any community with fiber has achieved a long-term broadband solution. However, I worry that much of the funding could go to slower technologies, or even to the satellite companies – so we’ll have to wait and see what happens in a massive reverse auction.

States Take the Lead on Net Neutrality. When the US Appeals Court ruled that the FCC had the authority to undo net neutrality, the court also rules that states have the authority to step into that regulatory void. Numerous states have enacted some version of net neutrality, but California and Washington have enacted laws as comprehensive as the old FCC rules. My guess at some point is that the big ISPs will decide that they would rather have one set of federal net neutrality rules than a host of different state ones.

The Proliferation of Online Programming. The riches of programming available online is amazing. I’m a Maryland sports fan and there are only three basketball or football games that I can’t watch this season even though I don’t live in the Maryland market. I don’t understand why there aren’t more cord cutters because there is far more entertainment available online than anybody can possibly watch. A decade ago, I didn’t even own a TV because there was nothing worth watching – today I keep a wish list of programming to watch later.

NC Broadband Matters. Finally, I’m thankful for NC Broadband Matters. This is a non-profit in North Carolina that is working to bring broadband to communities that don’t have it today. The group invited me to join their Board this year and I look forward to working with this talented group of dedicated folks to help find rural broadband solutions in the state.

Perverting the FCC Comment Process

In a recent article, BuzzFeed dug into the issue of the FCC receiving millions of bogus comments in the last two rounds of the net neutrality docket. During the 2015 net neutrality comment period, the agency received over 4 million comments. Many of these were legitimate comments such as many that were driven by HBO’s John Oliver, who prompted people to comment in favor of net neutrality.

When the new FCC wanted to reverse the original net neutrality order they had to again open up the docket for public comment. This second time the FCC got over 20 million comments. The comments were so voluminous that the FCC website crashed in May 2017.

There were fake comments filed on both sides of the issue. On the pro-net neutrality side were 8 million nearly identical comments that were tied to email addresses from FakeMailGenerator.com. There were another million comments from people with @pornhub.com email addresses. On the anti-net neutrality side Buzzfeed identified several organizations that uploaded millions of comments using names, addresses and email addresses that came from a major data breach. These fake comments were generated on behalf of real people who had no idea their name was being used in the FCC proceeding. The fake filings included comments from some people who had died and also some anti-net neutrality comments from a few Democrats in the House of Representatives who clearly were pro-net neutrality.

While the FCC’s net neutrality dockets received the largest number of fake comments, there are fake comments being filed in other FCC dockets and false comments are being made for legislation at state legislatures.

As somebody who often comments on FCC dockets, the fake comments give me heartburn. Flooding a docket with fake comments makes it likely that legitimate comments are not read or considered. What might be the most interesting thing about the net neutrality docket is that in both cases it was clear the FCC COmmissioners had already decided how they were going to vote – so the fake comments had no real impact. But most FCC dockets are not partisan. For example, there were a lot of fake comments filed in the docket that was considering changing the rules for cable cards – the devices that allow people to avoid paying for the cable company settop boxes. That kind of docket is not partisan and is more typical of the kinds of issues that the FCC has to wangle with.

Hopefully, legal action will be taken against the bad actors that were identified in the net neutrality filings. There are several companies that have been formed for the express purposes of generating large volumes of comments in government dockets. There is nothing wrong in working with organizations to generate comments to politicians. It’s almost a definition of the first amendment if AARP galvanizes members to comment against changes in social security. But it’s a perversion of democracy when fake comments are generated to try to influence the political process.

Fighting this issue was not made any easier when the current FCC under Ajit Pai ignored public records requests in 2017 that wanted to look deeper at the underlying fake comments. After a lawsuit was filed the FCC eventually responded to public records requests that led to investigations like the one described in the Buzzfeed article.

There are probably ways for the FCC and other agencies to restrict the volume of fake comments. For example, the FCC might end the process of allowing for large quantities of comments to be filed on a bulk basis. But federal agencies have to be careful to not kill legitimate comments. It’s not unusual for an organization to encourage members to file, and they often do so using the same language in multiple filings.

This is another example of how technology can be used for negative purposes – in essence, the FCC was hacked in these dockets. As long as there is a portal for citizens to make comments it’s likely that there will be fake comments made. Fake comments are often being made outside the government process and fake reviews are a big problem for web sites like Amazon and Yelp. We need to find a way to stop the fake comments from overwhelming the real comments.

Court Upholds Repeal of Net Neutrality

The DC Circuit Court of Appeals ruled on the last day of September that the FCC had the authority to kill Title II regulation and to repeal net neutrality. However, the ruling wasn’t entirely in the FCC’s favor. The agency was ordered to look again at how the repeal of Title II regulation affects public safety. In a more important ruling, the courts said that the FCC didn’t have the authority to stop states and municipalities from establishing their own rules for net neutrality.

This court was ruling on the appeal of the FCCs net neutrality order filed by Mozilla and joined by 22 states and a few other web companies like Reddit and Etsy. Those appeals centered on the FCC’s authority to kill Title II regulation and to hand broadband regulation to the Federal Trade Commission.

Net neutrality has been a roller coaster of an issue. Tom Wheeler’s FCC put the net neutrality rules in place in 2015. An appeal of that case got a court ruling that the FCC was within its power to implement net neutrality. After a change in administration, the Ajit Pai FCC killed net neutrality in 2017 by also killing Title II regulation. Now the courts have said that the FCC also has the authority to not regulate net neutrality.

The latest court order will set off another round of fighting about net neutrality. The FCC had quashed a law in California to introduce their version of net neutrality and this order effectively will allow those California rules to go into effect. That battle is far from over and there will be likely new appeals against the California rules and similar rules enacted in Washington. It wouldn’t be surprising to see other states enact rules in the coming year since the net neutrality issue is overwhelmingly popular with voters. It’s possibly the worst of all worlds for big ISPs if they have to follow different net neutrality rules in different states. I think they’d much prefer federal net neutrality rules rather than different rules in  a dozen states.

The reversal of net neutrality rules only went effect in June of 2018 and there have been no major violations of the old rules since then. The ISPs were likely waiting for the results of this court ruling and also are wary of a political and regulatory backlash if they start breaking net neutrality rules. The closest thing we had to a big issue was mentioned in this ruling. Verizon had cut off broadband for firemen in California who were working on wildfires after the firemen exceeded their monthly data caps. It turns out that wasn’t a net neutrality violation, but rather an enforcement issue on a corporate cellular account. But the press on that case was bad enough to prompt the courts to require the FCC to take another look at how ISPs treat public safety.

This issue is also far from over politically. Most of the democratic presidential candidates have come out in favor of net neutrality and if Democrats win the White House you can expect a pro-net neutrality chairman of the FCC. Chairman Pai believes that by killing Title II regulation that a future FCC will have a harder time putting the rules back in place. But the two court appeals have shown that the courts largely believe the FCC has the authority to implement or not implement net neutrality as they see fit.

While net neutrality is getting all of the press, the larger issue is that the FCC has washed its hands of broadband regulation. The US is the only major economy in the world to not regulate the broadband industry. This makes little sense in a country where are a large part of the country is still controlled by the cable/telco duopoly, which many argue is quickly becoming a cable monopoly. It’s easy to foresee bad behavior from the big ISPs if they aren’t regulated. We’ve seen the big ISPs increase broadband rates in the last few years and there is no regulatory authority in the country that can apply any brakes to the industry. The big ISPs are likely to demand more money out of Google, Facebook and the big web companies.

The FCC handed off the authority to regulate broadband to the Federal Trade Commission. That means practically no regulation because the FTC tackles a single corporation for bad behavior but does not establish permanent rules that apply to other similar businesses. The FTC might slam AT&T or Comcast from time to time, but that’s not likely to change the behavior of the rest of the industry very much.

There is only one clear path for dealing with net neutrality. Congress can stop future FCC actions and the ensuing lawsuits by passing a clear set of laws that either implements net neutrality or that forbids it. However, until there is a Congress and a White House willing to together implement such a law this is going to continue to bounce around.

The big ISPs and Chairman Pai argued that net neutrality was holding back broadband investments in the country – a claim that has no basis when looking at the numbers. However, there is definitely an impact in the industry from regulatory uncertainty, and nobody is benefitting from an environment where subsequent administrations alternately pass and repeal net neutrality. We need to resolve this once way or the other.

Is AT&T the 800-pound Gorilla?

For years it’s been understood in the industry that Comcast is the hardest incumbent to compete against. However, they are still a cable company and many people dislike cable companies – but Comcast has been the most formidable competitor. The company is reported to have the highest gross margins on cable TV and might be one of the few companies still making a significant profit on cable. Much of that is due to their extensive programming holdings – it’s easier to make money on cable when you buy your own programming. Comcast has also been the best in the industry in creating bundles to lock in customers – bundling things like smart home and more recently cellular service.

But the new 800-pound Gorilla in the industry might be AT&T. The company seems to be finally shaking out of the transition period from integrating their purchase of Time Warner. It can be argued that the programming that came from that merger – things like HBO, CNN, and blockbuster movies – will make AT&T a more formidable competitor than Comcast.

AT&T will be launching its new streaming service, AT&T TV, next month. The company already has one of the largest streaming services with DirecTV Now. It’s been rumored that the streaming service will start at a price around $18 per month – an amazingly low price considering that HBO retails for $15 online today. The company is trying to coax more money out of the millions of current HBO subscribers. This pricing also will lure customers to drop HBO bought from cable companies and instead purchase it online.

AT&T has also been building fiber for the last four years and says that they now pass 20 million homes and businesses. They recently announced the end of the big fiber push and will likely now concentrate on selling to customers in that big footprint. The company is one of the more aggressive marketers and has sent somebody to my door several times in the last year. That’s a sign of a company that is working hard to gain broadband subscribers.

The one area where AT&T is still missing the boat is in not bundling broadband and cellular service. AT&T is still number one in the country with cellular customers, with almost 160 million customers at the end of the recently ended second quarter. For some reason, they have never tried to create bundles into that large customer base.

AT&T has most recently been having a customer purge at DirecTV. For years that business bought market share by offering low-prices significantly below landline cable TV. Over the last, year the company has been refusing to renew promotional pricing deals and is willing to let customers walk. In the first quarter of this year alone the company lost nearly one million customers. The company says they are not unhappy to see these customers leave since they weren’t contributing to the bottom line. This is a sign of a company that is strengthening its position by stripping away the cost of dealing with unprofitable customers.

AT&T has also pushed a few net neutrality issues further than other incumbents. As a whole, the industry seems to be keeping a low profile with issues that are identified as net neutrality violations. There is speculation that the industry doesn’t want to stir up public ire on the topic and invite a regulatory backlash if there is a change in administration.

AT&T widely advertised to its cellular customers earlier this year that the company would not count DirecTV Now usage against cellular or landline data caps. The same will likely be true for AT&T TV. Favoring one’s own service over the competition is clearly one of the things that net neutrality was intended to stop. Since there are data caps on both cellular and AT&T landline products, the move puts Netflix and other streaming services at a competitive disadvantage. That disadvantage will grow over time as more landline customers hit the AT&T data caps.

AT&T has made big mistakes in the past. For instance, they poured a fortune into promoting 50 Gbps DSL instead of pushing for fiber a decade sooner. They launched their cable TV product just as that market peaked. The company seemed to lose sight of all landline and fiber-based products for a decade when everything the company did was for cellular – I remember a decade ago having trouble even finding mention of the broadband business in the AT&T annual report.

We’ll have to wait a few years to see if a company like AT&T can reinvent itself as a media giant. For now, it looks like they are making all of the right moves to take advantage of their huge resources. But the company is still managed by the same folks who were managing it a decade ago, so we’ll have to see if they can change enough to make a difference.

Are Broadband Investments Increasing?

The largest ISPs and their lobbying arm USTelecom are still claiming that the level of industry capital spending has improved as a direct result of the end of Title II regulation. In a recent blog they argue that capital spending was up in 2018 due to the end of regulation – something they describe as a “forward-looking regulatory framework”. In reality, the new regulatory regime is now zero regulation since the FCC stripped themselves of the ability to change ISP behavior for broadband products and practices.

The big ISPs used this same argument for years leading up to deregulation. They claimed that ISPs held back on investments since they were hesitant to invest in a regulatory-heavy environment. This argument never held water for a few reasons. First, the FCC barely ever regulated broadband companies. Since the advent of DSL and cable modems in the late 1990s, each subsequent FCC has largely been hands-off with the ISP industry.

The one area where the last FCC added some regulations was with net neutrality. According to USTelecom that was crippling regulation. In reality, the CEO of every big telco and cable company has publicly stated that they could live with the basic principles of net neutrality. The one area of regulation that has always worried the big ISPs is some kind of price regulation. That’s really not been needed in the past, but all of the big companies look into the future and realize that the time will come when they will probably raise broadband rates every year. We are now seeing the beginnings of that trend, which is probably why USTelecom keeps beating this particular dead horse to death – the ISPs are petrified of rate regulation of any kind.

The argument that the big ISPs held back on investment due to heavy regulation has never had any semblance to reality. The fact is that the big ISPs make investments for the same reasons as any large corporation – to increase revenues, to reduce operating costs, or to protect markets.

As an example, AT&T has been required to build fiber past 12.5 million passings as part of the settlement reached that allowed them to buy DirecTV. AT&T grabbed that mandate with gusto and has been aggressively building fiber for the past several years and selling fiber broadband. Both AT&T and Verizon have also been building fiber to cut transport expense to cell sites – they are building where that transport is too costly, or where they know they want to install small cell sites. The large cable companies all spent capital on DOCSIS 3.1 for the last few years to boost broadband speeds to protect and nurture their growing monopoly of urban broadband. All of these investment decisions were made for strategic business reasons that didn’t consider the difference between light regulation and no regulation. Any big ISP that says they will forego a strategic investment due to regulation would probably see their stock price tumble.

As a numbers guy, I always become instantly suspicious of deceptive graphs. Consider the graph included in the latest USTelecom blog. It shows the levels of industry capital investments made between 2014 and 2018. The graph makes the swings of investment by year look big due to the graphing trick of starting the bottom of the graph at $66 billion instead of at zero. The fact is that 2018 capital investments are less than 3% higher than the investments made in 2014. This is an industry where the aggregate level of annual investment varies by only a few percent per year – the argument that the ISPs have been unleashed due to the end of Title II regulation is laughable and the numbers don’t show it.

There are always stories every year that can explain the annual fluctuation in industry spending. Here are just a few things that made an significant impact on the aggregate spending in the past few years:

  • Sprint had a cash crunch a few years ago and drastically cut capital spending. One of the primary reasons for the higher 2018 spending is that Sprint spent almost $2 billion more in 2018 than the year before as they try to catch up on neglected projects.
  • AT&T spent $2 billion in 2018 for FirstNet, the nationwide public safety network. But AT&T is not spending their own money – that project is being funded by the federal government and ought to be removed from these charts.
  • Another $3 billion of AT&T’s spending in 2018 was to beef up the 4G network in Mexico. I’m not sure how including that spending in the numbers has any relevance to US regulation.
  • AT&T has been on a tear building fiber for the past four years – but they announced last month that the big construction push is over, and they will see lower capital spending in future years. AT&T has the largest capital budget in the industry and spent 30% of the industry wide $75 billion in 2018 – how will USTelecom paint the picture next year after a sizable decrease in AT&T spending?

The fact that USTelecom keeps harping on this talking point means they must fear some return to regulation. We are seeing Congress seriously considering new consumer privacy rules that would restrict the ability of ISPs to monetize customer data. We know it’s likely that if the Democrats take back the White House and the Senate that net neutrality and the regulation of broadband will be reinstated. For now, the big ISPs have clearly and completely won the regulatory battle and broadband is as close to deregulated as any industry can be. Sticking with this false narrative can only mean that the big ISPs think their win is temporary.

Why is the FCC Still Spinning Net Neutrality?

Chairman Ajit Pai and several other FCC Commissioners are still sticking with the story that regulation and net neutrality were quashing capital spending and innovation in the industry. This was the primary argument that justified killing net neutrality and gutting Title II regulation. Pai claimed that net neutrality was disrupting the big ISPs so much that they were reining in capital spending. Chairman Pai further claimed that killing regulation would free the big ISPs to expand their networks and to improve broadband coverage – he’s also repeatedly argued that without regulation that ‘the market’ would solve the rural broadband divide. Chairman Pai launched this story on his first day as Chairman and hasn’t let up – even now, over a year after the FCC successfully killed net neutrality and Title II regulation.

I find this to be unusual. Normally, when somebody in the industry wins a regulatory battle they quietly move on to the next issue, but at almost every public speaking opportunity the Chairman is still repeating these same talking points. I’ve been thinking about why Chairman Pai would keep harping on this argument long after he successfully killed net neutrality. I can think of a few reasons.

The Lawsuits. The FCC is probably concerned about the lawsuits challenging net neutrality. That order used some legal gymnastics in the FCC argument to kill Title II regulation. So perhaps Chairman Pai is continuing to make these same arguments as a way to let the courts know that keeping Title II regulation dead is still the number one priority of this FCC. I’m sure that if the courts challenge the FCC order that the agency will appeal, and so perhaps he continues to make the same arguments in anticipation of that coming court battle.

5G Deployment. In a very odd back-door way, the FCC has been using the net neutrality argument to grease the skids for an unregulated roll-out of 5G. The FCC’s message couldn’t be simpler: “all regulation bad / 5G and innovation good”.

I doubt that the average American understands the magnitude of what this FCC did when they killed Title II regulation. The agency basically killed its own authority to regulate what is probably the most important product it has ever regulated. Broadband is vital to both the economy and to people’s everyday lives. Yet this FCC thinks that their best regulatory role is to not regulate the industry in any manner. That means not regulating the many issues covered by net neutrality. It means not caring about consumer privacy on the web. It means not being concerned with runaway price increases and data caps. Killing Title II regulation means that future FCCs might have a hard time trying to reintroduce any regulation of broadband. The FCC handed the keys of the broadband industry to the monopoly ISPs and told them to run the industry as they see fit.

At the strong urging of the big wireless companies, this FCC wants to also make sure there are no restraints on 5G. It seems the only parties the FCC wants to regulate are those that might create roadblocks for 5G, such as cities that control rights-of-way.

Congress. Congress has the ability to permanently resolve the Title II and net neutrality battle. Congress could codify the current deregulated state-of-affairs or they could put Title II and net neutrality permanently back on the books. In fact, it’s the lack of Congressional action that led the FCC to kill net neutrality – they would much have preferred that Congress did it. But the Congress hasn’t undertaken any policy initiatives in the telecom industry since the Telecommunications Act of 1996, when most of us still were using dial-up.

There has been a lot of recent discussion in Congress on telecom issues and perhaps one of the reasons that Chairman Pai continues to lobby against net neutrality is to keep that position in front of Congress. However, it seems unlikely that any significant regulation is going to come out of a split Congress.

No Better Argument? Finally, and what is my favorite theory, perhaps the FCC doesn’t have any better argument about why they should be killing regulation. They’ve had years to come up with a story that the American people will buy, and the best they’ve come up with is that killing regulation will unleash innovation.

I think the FCC is afraid to touch the policy issues that the public really cares about. People in rural areas are adamant that the FCC finds a way to get them real broadband. The vast majority of broadband users are worried about being hacked and are worried about how the big ISPs are spying on them and selling their data. Everybody is concerned about the talk on Wall Street that encourages the big ISPs to significantly jack up rates. A large majority of the country cares about net neutrality and an open Internet. I can see why the FCC would rather stick with their story about how killing regulation unleashes innovation – because they are afraid of opening Pandora’s box to let all of these other issues into the open.

New Net Neutrality Legislation

On February 7, as hearings were being held on net neutrality, Congressional Republicans said they were going to offer up three different versions of a bill intended to reinstate net neutrality principles. The newest bill, the Open Internet Act of 2019, was introduced by Rep Bob Latta of Ohio. They also offered up bills previously introduced by Rep. Greg Walden of Oregon and Sen John Thune of South Dakota.

All three bills would reestablish rules against ISP blocking web traffic, throttling customers or implementing paid-prioritization, which has been referred to as creating fast lanes that give some web traffic prioritization over other traffic. Hanging over all of these bills is a court review of a challenge of the FCC’s right to kill net neutrality – a successful challenge would reinstate the original FCC net neutrality rules. There are also a number of states poised to introduce their own net neutrality rules should the court challenge fail.

The court case and the threat of state net neutrality rules are prodding Congress to enact net neutrality legislation. Legislation has always been the preferred solution for imposing any major changes in regulation. When there’s no legislation, then rules like net neutrality are subject to being changed every time there is a new FCC or a new administration. Nobody in the country benefits – not ISPs and not citizens – when policies like net neutrality change every time there is a new administration.

These three bills were clearly influenced by the big ISPs. They include nearly the identical talking points that are being promoted by NCTA, the lobbying arm of the largest ISPs, headed by ex-FCC Commissioner Michael Powell. There are two primary differences in these bills and the original net neutrality rules that were established by the last FCC.

The first is a provision that the legislation would allow the ISPs to stray from the net neutrality principles if there is a ‘public benefit’ from doing so. That would allow ISPs to adopt any web practice they want as long as they can concoct a story about how the practice creates a public benefit. Since there are winners and losers from almost any network practice of ISPs, it wouldn’t be hard to identify those that benefit from a given practice. From a regulatory perspective, this is as close as we can come to a joke. If a regulated entity gets to decide when a regulation applies, then it’s not really a regulation.

The other big difference from the proposed legislation and the original net neutrality order is the lack of what is called a ‘general conduct standard’. The original net neutrality order understood that the Internet is a rapidly evolving and that any specific rules governing Internet behavior would be obsolete almost as soon as they are enacted. ISPs and the other big players on the web are able to design ways around almost any imaginable legislative rules.

The original net neutrality order took the tactic of establishing the three basic net neutrality principles but didn’t provide any specific direction on how the FCC was supposed to enforce them. The concept of the general conduct standard is that the FCC will look at each bad practice of an ISP to see if it violates the net neutrality principles. Any FCC ruling would thus be somewhat narrow, except that a ruling against a specific ISP practice would generally apply to others doing the same thing.

The original net neutrality order envisioned a cycle where the FCC rules against bad practices and the ISPs then try to find another way to get what they want – so there would be a continuous cycle of ISPs introducing questionable behavior with the FCC deciding each time if the new practice violates the intent of the net neutrality principles. This was a really clever solution for trying to regulate an industry that changes as quickly as the ISP and web world.

The proposed legislation does away with the general conduct standard. That means that the FCC would not have the ability to judge specific ISP behavior as meeting or not meeting the net neutrality standards. This would take all of the teeth out of net neutrality rules since the FCC would have little authority to ban specific bad practices. This was summarized most succinctly by former FCC Chairman Tom Wheeler who testified in the recent Congressional hearings that if Congress established net neutrality rules it ought to allow for “a referee on the field with the ability to throw the flag for unjust and unreasonable activity.”

The bottom line is that the proposed legislation would reintroduce the basic tenets of net neutrality but would give the FCC almost no authority to enforce the rules. It’s impossible to imagine these bills being passed by a divided Congress, so we’re back to waiting on the Courts or perhaps on states trying to regulate net neutrality on their own – meaning a long-term muddled period of regulatory uncertainty.

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.