Why We Still Need Net Neutrality

Benton Institute for Broadband & Society

Friday, December 13, 2019

Weekly Digest

Why We Still Need Net Neutrality

 You’re reading the Benton Institute for Broadband & Society’s Weekly Digest, a recap of the biggest (or most overlooked) broadband stories of the week. The digest is delivered via e-mail each Friday.

Round-Up for the Week of December 9-13, 2019

Kevin Taglang

On December 10, 2019, Senate Democrats once again demanded, via a call for unanimous consent, an immediate vote on the Save the Internet Act, legislation that reverses the repeal of net neutrality protections. The repeal, adopted two years ago, classified broadband internet access service as an information service and, importantly, largely abdicated the FCC's jurisdiction over broadband. Earlier this year, the House of Representatives passed the Save the Internet Act, but Senate Majority Leader Mitch McConnell (R-KY) has declined to schedule a vote in the Senate.

The debate in the Senate this week was familiar to anyone who's been following this issue. 

Senate Commerce Committee Chairman Roger Wicker (R-MS) took to the Senate floor to object to Democrats' demand thus preventing a vote. “If they want to save us from innovation and growth then perhaps the Save the Internet Act would get that done,” Sen. Wicker said. He claimed net neutrality regulations effectively smothered investment in broadband internet -- and since repeal, there has been historic expansion of internet access. He expressed skepticism about companies beginning to prioritize internet traffic. “Where are the fast and slow lanes?” he asked. Nevertheless, he cast the vote as a choice between allowing the internet to grow by doing nothing or stifling it.

The false choice between broadband deployment and net neutrality

Sen. Ed Markey (D-MA) led the charge seeking a vote on the Save the Internet Act. He countered Wicker saying, “What we just heard from the majority is, in fact, a false narrative that contends that we have to choose between broadband deployment and net neutrality… if we don’t put net neutrality back on the books, there will be internet fast and slow lanes. That’s what’s about to happen if we don’t act.”

But is this as far as the debate goes?

Broadband Internet Access Service Without Net Neutrality

Some supporters of the repeal justify the FCC’s action by claiming that the internet did not slow to a crawl or cease to exist, hence net neutrality protections and FCC oversight of broadband providers is unnecessary. Net neutrality supporters say broadband consumers need protections against providers blocking, throttling, or charging for prioritization of traffic. However they also note that the FCC's decision to classify broadband internet access service as an information service rather a telecommunications service means that broadband consumers don't have the protections enshrined in Title II of the Communications Act.

Our friends at Public Knowledge offered a smart rebuttal to repeal supporters, offering examples of how broadband service is changing without these consumer protections:

Not Too Transparent

In the 2017 repeal, the FCC ruled that a "refined" transparency rule "coupled with existing consumer protection and antitrust laws, will significantly reduce the likelihood that ISPs will engage in actions that would harm consumers or competition." This week we saw that the transparency rule may not be delivering benefits for consumers.

CenturyLink will pay a $6.1 million penalty after Washington state regulators found that the company failed to disclose fees that raised actual prices well above the advertised rates. CenturyLink must stop charging a so-called "Internet Cost Recovery Fee" in the state, although customers may end up paying the fee until their contracts expire unless they take action to switch plans. CenturyLink charged its Internet Cost Recovery Fee to 650,000 Washingtonians. CenturyLink says the fee "helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network, as well as the costs of expanding network capacity to support the continued increase in customers' average broadband consumption." In other words, the fee covers the company's normal costs of doing business but is excluded from advertised rates in order to make CenturyLink's service sound cheaper than it really is. CenturyLink has been charging $1.99 for the Internet Cost Recovery Fee in Washington and continues to charge an Internet Cost Recovery Fee of $3.99 per internet connection in other states.

"Our transparency rule will ... help ensure that any problematic conduct by internet service providers is quickly identified and corrected." -- FCC Chairman Ajit Pai

CenturyLink is not the only provider that's guilty of a lack of transparency. On December 10, the FCC issued a number of citations and admonishments to small broadband providers for failure to disclose information regarding their network management practices, performance, and the commercial terms of its services. The FCC's transparency disclosure requirements are meant to allow consumers to make informed choices regarding the purchase and use of broadband internet access services, and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. This week's citations and admonishments were for "willfully" violating FCC rules and included orders to publicly disclose the required information via a publicly available, easily accessible website, or by transmittal to the Commission, within thirty (30) days. If the offending providers do not meet the requirements within 30 days, they may be liable for fines. 

Cooked Books

On December 12, we learned about major flaws in data on speed tests conducted and reported on by the FCC. The Wall Street Journal reports that companies wield tremendous influence over the study and often employ tactics to boost their scores. As a result, the FCC’s report likely gives consumers an unreliable measure of internet providers’ performances by overstating speeds. The reports largely paint a rosy picture for internet providers. Last year, a key finding was that “for most of the major broadband providers that were tested, measured download speeds were 100% or better of advertised speeds during the peak hours.”

In 2013 and 2014, millions of Comcast, Verizon and Time Warner Cable customers experienced internet slowdowns—most notably while viewing Netflix, but also on a range of other sites and applications. The FCC omitted speed-test results reflecting that in its report. The agency said the network congestion, which stemmed from a standoff between Netflix, the providers, and internet middleman Cogent Communications over who should pay for upgrading their shared connections, was outside the scope of the study. Comcast, Verizon and Time Warner Cable got stellar grades in the 2014 report.

Henning Schulzrinne, the chief technology officer at the FCC for several years, said he was against such exemptions because they obscured customers’ actual experiences.

A big reason for the gap between the speeds internet companies promise and those they deliver is the structure of most broadband networks. Service providers pipe bandwidth into neighborhoods, where it is shared by those households. The amount of bandwidth providers deliver is a fraction—often as low as 1%—of the total bandwidth all households in the neighborhood have collectively signed up for in their monthly plans, according to CTC Technology & Energy, a telecommunications consulting firm.

That helps explain why at times of peak usage, there isn’t enough bandwidth to go around, and people experience speeds slower than what they paid for. When providers roll out faster speed plans, without upgrading the total bandwidth available to neighborhood networks, the results can be even more frustrating for consumers. 

Most striking in the Wall Street Journal article are the revelations that the FCC informs companies which customers are part of the speed tests, allowing some to prioritize giving those households better service. The FCC relies on companies to provide information about the speed plans for the customers being tested. Additionally, many providers gain additional information about the users being tested by paying SamKnows, the U.K.-based company that administers and provides equipment for the tests, for real-time access to testers’ scores year-round, and other analytics. The FCC and SamKnows inform the internet providers the dates of the testing period and send them lists of individual testers’ names so they can confirm which speed packages the customers have signed up for. 

SamKnows Chief Executive Alex Salter said having internet providers as clients doesn't interfere with its ability to do accurate testing for regulators. SamKnows said its contracts with providers range from about $13,000 to more than $650,000 a year. Internet experts and former FCC officials said the setup gives the internet companies enormous leverage. 

Later today, we will find out if parties in the court action that challenged the FCC's net neutrality repeal will appeal the decision that upheld the FCC order. Why do net neutrality advocates fight on even though they've lost battles at the FCC, in Congress, and before the court? Because this long-running debate really matters. And consumers need to win. 

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Upcoming Events in December

Dec 17 -- Exploring the Intersection: Online Hate and Privacy (The Lawyers' Committee for Civil Rights Under Law)

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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Kevin Taglang

Kevin Taglang
Executive Editor, Communications-related Headlines
Benton Institute
for Broadband & Society
727 Chicago Avenue
Evanston, IL 60202
headlines AT benton DOT org

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