July 31, 2017
While Verizon is telling the FCC to get rid of Title II classification and to weaken the open internet rules, Verizon Wireless is already trying to undermine the open internet by experimenting with potentially anti-consumer discrimination practices. Unfortunately, Verizon Wireless is proving why millions of Americans are correct in voicing their concern over the FCC’s proposal to repeal its 2015 net neutrality rules.
Last week, many Verizon Wireless customers reported their Netflix and YouTube speeds appeared to be capped at 10 Mbps. This led to a lengthy Reddit post where numerous users contributed and investigated what was going on. Verizon acknowledged that it was conducting “network testing” to “optimize” its video streaming, and claimed that it was reasonable network management.
But we simply do not know enough about the practice to know whether it would constitute reasonable network management, or whether it would violate the no throttling rule under the 2015 Open Internet Order. Does testing a network’s ability to throttle video traffic constitute reasonable network management? If Verizon is throttling in response to congestion on the network, what congestion has it identified and how does this test address that congestion? Was this practice primarily justified by a business or a technical purpose? Verizon Wireless may have been conducting network management practices that did not amount to throttling, but thanks to the net neutrality rules, we don’t have to take Verizon’s word for it. The FCC is there to review these sorts of potential harms and determine their impact on consumers.
Further, Verizon appeared not to provide its users with any notice about this practice, in a potential violation of the transparency requirements under the 2015 Order. Why did Verizon not provide apparent notice of this practice? The company’s potential inattention to transparency would certainly be harmful to its customers who relied on a Reddit megapost and eventually several inquiries from journalists to determine what was going on.
These are precisely the kinds of questions that the FCC is expected to ask as they evaluate practices under the 2015 Order. The rules remain the law of the land, and the FCC chairman has a real chance to prove that he meant it when he said: “There are [open internet] rules on the books and the FCC is duty-bound to enforce them.” OTI agrees and the FCC should open an investigation into Verizon’s discriminatory practices.
Verizon’s actions and the cloud of uncertainty surrounding their practices is a timely reminder that, absent a strong regulator, ISPs can and will use their gatekeeper power to harm consumers and grow their own market power. If you want to connect to the internet, and access all the services that you can get through that connection (from entertainment to education to employment) you must go through an internet service provider. Broadband companies know they have substantial leverage in the internet ecosystem, which is why it is so vital for the FCC to actively combat harmful practices such as throttling.
The FCC’s Recent Struggle With Transparency in Its Net Neutrality Proceeding
The Verizon case is a good opportunity to revisit the agency’s own transparency failures regarding net neutrality. Since June 2015, the FCC has received more than 47,000 net neutrality complaints from the American people. But the public can’t see those complaints or the agency’s response. It is also concerning that Chairman Pai has not indicated that he will look at the complaints as part of his process to review the Open Internet Order.
These complaints could go right to the heart of Chairman Pai’s “concerns” regarding whether the rules are working or are necessary. However, last week the FCC refused to release the text of these complaints following a Freedom of Information Act request from the National Hispanic Media Coalition. The agency argued to release the complaints, they would have to review and redact personally identifiable information, saying that it would have been “unreasonably burdensome.” Maintaining the privacy of complainants is key. But the FCC has a FOIA office that very reasonably could have expected these documents would be of great interest to the public, especially after the new FCC Chairman released a Notice asking whether the rules worked, and asked particularly about the efficacy of the complaint mechanisms. The complaints and their responses are vital inputs into that analysis, and the FCC is obfuscating the public’s ability to perform the proper analysis.
The public deserves access to this information. The American people should know how often internet service providers throttle internet users’ connections to certain websites, and how the FCC responded to those allegations of blocking or possible paid prioritization schemes. It’s key to illustrating how important strong net neutrality rules are. It’s integral to our fight to ensure the FCC maintains its power to protect consumers and make sure everyone has equal access to the entirety of the internet, and not just the sections that broadband providers decide will get preferential treatment.