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Posted on Net Neutrality Special Edition - 14 December 2017 @ 6:40am

Leaked E-mail Shows Even The FCC's Own CTO Thinks Gutting Net Neutrality Harms The Public

from the dysfunction-junction dept

So by now we've pointed out how 200 engineers, internet legends, nearly 1000 startups, countless internet companies, 30 small ISPs, and millions of American consumers have told the FCC its plan to repeal net neutrality is extreme and will harm competition, innovation, and the health of the internet. But we've also pointed out repeatedly how this makes absolutely no difference at Trump's FCC, which appears mindlessly dedicated toward one singular purpose: pleasing entrenched telecom duopolies like Comcast, AT&T and Verizon.

You can add the FCC's own CTO to the long list of folks who think the FCC's net neutrality repeal is neither in the public interest, nor good for the health of the internet. In a leaked e-mail this week, FCC CTO Eric Burger (hired by Ajit Pai last October) warned that once the rules are repealed, there's really nothing in place to stop these entrenched duopolies from throttling or hamstringing services or websites they compete with:

"In an internal email to all of the FCC commissioner offices, CTO Eric Burger, who was appointed by Pai in October, said the No. 1 issue with the repeal is concern that internet service providers will block or throttle specific websites, according to FCC sources who viewed the message.

"Unfortunately, I realize we do not address that at all," Burger said in the email. "If the ISP is transparent about blocking legal content, there is nothing the [Federal Trade Commission] can do about it unless the FTC determines it was done for anti-competitive reasons. Allowing such blocking is not in the public interest."

So if you buy the FCC/big ISP argument here, the net neutrality repeal and the gutting of FCC authority over giant ISPs isn't a big deal -- because the FTC will rush in and protect consumers. But we've already noted in great detail how that's simply not going to be happening. The FTC's currently losing a lawsuit against AT&T that could obliterate that ability almost entirely. Even if they win that case, we've explored in detail how the FTC's existing authority is so limited, clever ISPs like Comcast will be able to simply tap dance around enforcement.

Another source at the FCC told Politico that Burger's concerns were just part of the everyday back and forth chatter that occurs at the FCC, and that his concerns had somehow been addressed by an update to the NPRM:

"An FCC official, speaking on the condition of anonymity to discuss the internal deliberations, said Burger's concerns have been addressed since his message Wednesday morning. The discussion, the official said, is part of the normal back-and-forth process of editing an FCC order.

The official said that some clarifying language was added to the order and that Burger replied Wednesday afternoon to say his concerns were "fully addressed." The official also noted that the CTO was focused on one section of the order and not the part that dealt with the rules.

The problem is that there's no way that this issue was "fully addressed," because it's the entire foundation for Pai's order. Gutting FCC authority, then throwing any piddly remaining oversight of ISPs to an FTC ill-equipped to handle it is the entire plan. The fact that enforcement will fall through the cracks at the FTC is the whole damn point and is precisely why ISPs are lobbying for this. The FTC can't make new rules, can't act until after offenses have occurred, and even then -- only if it can be clearly proven that the ISP was being "unfair" or "deceptive" --something that's easy to dodge just by using TOS mouse print.

In the world of net neutrality violations, where ISPs often hide anti-competitive behavior under faux technical nonsense or breathless claims they were only trying to protect the network -- ISP lawyers will run circles around the FTC. And again, this is only if the FTC wins its court case against AT&T. If it loses, there's really nothing stopping giant ISPs from being as large of an anti-competitive ass as they can imagine. And should any states get the funny idea to step in and protect consumers or competitors, Pai's FCC incumbent ISPs want to hamstring those efforts as well.

Experts have been pointing out this fatal flaw in Ajit Pai's plan for much of the last year. That includes the two-time former FCC CTO, who has repeatedly pointed out how easy large ISPs will be able to abuse a lack of competition under this new paradigm. And while it's nice to see the FCC's current CTO recognize the problem as well, these concerns will likely only join the now-towering pile of discarded feedback that didn't quite line up with Comcast, Verizon and AT&T's vision of the internet.

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Posted on Net Neutrality Special Edition - 13 December 2017 @ 1:41pm

FCC Boss Claims Net Neutrality Hurts Small ISPs, But The FCC's Own Data Proves Otherwise

from the fluff-and-nonsense dept

By now we've noted countless times how the claim that net neutrality hurt broadband investment is indisputably false. It's not a debate. Public SEC filings, earnings reports, and numerous CEO statements to investors (who, unlike you, they're legally not allowed to lie to) have disproven this canard. Data suggesting otherwise usually originates with ISP-paid economists more than willing to twist, distort, cherry pick and massage the numbers until they comply with whatever message is being shoveled toward the media this week.

Despite the "net neutrality-killed investment" claim being decidedly false, it never appears to die. ISPs and FCC boss Ajit Pai continue to desperately cling to this claim as if repetition forges reality itself. The claim has played a starring role in nearly every speech Pai has given on this subject, as well as every press release that has been issued by the FCC. The claim popped up yet again recently, when Ajit Pai issued a press release (pdf) claiming that he had been meeting with five small ISPs, all of which claimed that net neutrality had seriously harmed their ability to expand their broadband footprints. From the release:

"I appreciated the opportunity to speak with small providers across the country to hear how the FCC’s 2015 rules are impacting them on a day-to-day basis. One constant theme I heard was how Title II had slowed investment and injected regulatory uncertainty into their business plans--in short, heavy-handed regulation is making it harder for smaller providers to close the digital divide in rural America. By lightening the regulatory burden from Washington, we will unleash providers to do what they do best: serve their communities and provide broadband access to residents across the country."

So one, we've already noted how Pai's breathless dedication to "closing the digital divide" are consistently betrayed by his actions, whether it's his choice to make life easier for business broadband monopolies, to kill broadband programs (launched by Reagan and expanded by Bush Junior) that aid the poor, or to fiddle with broadband deployment metrics to try and obfuscate a lack of competition in the sector. Again, that Pai's biggest priority is protecting the revenues of the industry's biggest and most politically-powerful companies isn't really something that's open to debate. His voting record is very clear on this subject.

Two, while Pai tries to suggest that small ISPs are unified in their opposition to the rules, nearly thirty small ISPs have already come out in opposition to the FCC's plan. Those that support the plan tend to be helmed by partisans more interested in partisan ideological fealty than the mounting evidence that suggests the FCC's agenda is extreme and counterproductive.

That said, Pai's press release claiming that net neutrality hurt small ISPs was completely unaccompanied by any hard data. Worse, when consumer advocates went and looked at the ISPs cited by the FCC release, four out of five of them significantly expanded their broadband deployments in the wake of the FCC's 2015 net neutrality rules. AirLink Internet Services in Oklahoma, one of the five ISPs cited by Pai, "more than doubled the number of rural Census blocks in which it offered service after the adoption of the [February] 2015 decision it criticizes," according to a recent FCC filing by consumer advocacy firm Free Press.

Again, the story was the same with four of the five ISPs cited by the FCC. The one ISP that didn't see significant deployment gains (Amplex Internet in Ohio), still managed to deploy gigabit fiber to an additional 18 census blocks during the time net neutrality rules were in place. Again, that's entirely according to the FCC's own data. Data the FCC refused to cite because it proved the exact opposite of the message they wanted to send:

"The data AirLink submitted to the FCC shows that it went from serving 1,482 rural Census blocks at the end of 2014 to more than 3,000 rural blocks by mid-year 2016, he wrote. The company expanded in urban Census blocks as well, going "from 4,251 such blocks to 7,108—an increase of more than 67 percent." The population served by AirLink increased by 64 percent in rural areas and 59 percent in urban areas, Wood wrote.

The ISPs' presentations were "rife with such vague statements and outright errors" but did not include any "dollar signs, deployment data, [or] any other quantifiable metric demonstrating the supposed impact of Title II," Wood wrote. "Perhaps this is because there is no quantifiable harm from Title II, only the anecdotes that these carriers provide when called upon by the Chairman," he wrote."

That's a clever way to state that the FCC's entire justification for repealing net neutrality has been based on fluff and nonsense, not hard data. When the FCC does cite data, it's usually data that originates directly from telecom lobbyists pushing for net neutrality repeal. Much like the FCC's blatant disregard for public and expert input on this proceeding, all of this will make for interesting fodder in the lawsuits coming the agency's way in the new year.

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Posted on Techdirt - 13 December 2017 @ 6:30am

After Investigating Itself, CenturyLink Proclaims There's Just No Way It Committed Billing Fraud

from the trust-and-don't-verify dept

Lawsuits have begun to pile up for broadband provider CenturyLink, after a whistleblower revealed earlier this year that the ISP had been routinely over-billing its broadband customers for years. The whistleblower, who claims she was fired after bringing the problem to company management, said the company had a multi-year habit of consistently signing customers up for services they never ordered and didn't want. Of course that's on top of the routinely-misleading billing practices we see at most giant broadband providers, most notably the habit of making up completely bogus fees to jack up the advertised price post sale.

The whistleblower account was followed up by lawsuits from several state attorneys general, who say they discovered ample evidence that misleading pricing and overbilling was a consistent occurrance. An investigation by Minnesota AG Lori Swanson, for example, found numerous examples where customers were overbilled -- yet CenturyLink refused to fix the problem -- even when customers had the ISP's original promises in writing.

But worry not! CenturyLink last week issued a press release stating it had investigated itself, and found that company executives were completely and utterly innocent of any wrong doing. According to CenturyLink, the company constructed a "special committee" filled with CenturyLink board members, who collectively dug through 9.7 million documents, 4.3 terabytes of billing data consisting of over 32 billion billing records -- and interviewed 200 current and former Company employees. They found, impressively, precisely what CenturyLink CEO Glen Post hoped they would:

"The Company accepts the Special Committee's findings and conclusions. The investigation confirmed my long-held belief that there was no fraud or wrongdoing at the Company and that cramming was neither widespread nor condoned. However, we know there have been times when we haven't provided our customers the experience they deserve. We have identified a number of areas where we can improve the customer experience and have already made significant progress in addressing those areas."

That's in stark contrast to what whistleblowers and numerous state investigations have so far discovered. So letting actual, independent third-party investigations determine guilt or innocence seems kind of important. What did the investigation find? It found that if there was a problem, it was due to the fact that CenturyLink's billing and pricing was somehow confusing customers:

"Some of the Company's products, pricing and promotions were complex and caused confusion, and the resulting bills sometimes failed to meet customer expectations. Additionally, limitations in the Company's ordering and billing software made it difficult to provide customers with estimates of their bills and confirmation of service letters that reflected all discounts, prorated charges, taxes and fees."

Of course CenturyLink would have you believe that this confusing pricing just magically materialized by itself accidentally. In reality, large ISPs consistently employ confusing pricing in order to make direct price comparisons between ISP bundles all but impossible. It's standard practice. Centurylink also has a nasty habit of (apparently accidentally) imposing completely misleading fees to jack up the advertised price of service. Take CenturyLink's $4 per month "Internet Cost Recovery Fee," for example, which CenturyLink explains as such on its website:

"This 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."

Of course that's bullshit, and tackling the "costs of expanding network capacity" is what your regular bill is for. What the fee does accomplish is it lets CenturyLink advertise one price, then charge something else entirely. It's something broadband providers learned from the airline, banking, and other industries, and with limited competition, the "free market" mysteriously never auto-corrects the problem. And neither the FCC nor FTC have ever deemed this fairly blatant false advertising via bogus fees (which take many forms) worthy of serious inquiry.

And that's with the FCC's net neutrality rules in place, which at least required that ISPs clearly document all of this hidden nonsense to consumers at the point of sale. With those requirements about to die, and both federal and state oversight of ISPs about to be obliterated, you can expect an already-bad problem to only get worse. It's another example of how the death of net neutrality is going to have wide-reaching negative effects that go well beyond our traditional understanding of net neutrality violations. Of course if you like being nickel and dimed by your broadband ISP, the future's looking bright for you indeed.

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Posted on Net Neutrality Special Edition - 12 December 2017 @ 11:59am

No, The FTC Won't Save You Once Net Neutrality Rules Are Killed

from the tricksy-and-false dept

If you understand anything about the net neutrality fight, it should be this: repealing these popular rules is just one small part of a long-standing ISP plan to reduce meaningful oversight of one of the least-competitive industries in America. So far this year we've already watched as the Trump administration gutted broadband privacy rules, defended price-gouging prison phone monopolies, made life easier on business broadband monopolies, and began weakening the standard definition of broadband to help obfuscate a lack of competition in the sector.

And they're only really getting started. The next big push, lobbied for by Comcast, AT&T and Verizon, is to gut meaningful FCC oversight of giant ISPs, then shovel any remaining authority over to the FTC. This week the FCC and FTC released a joint statement declaring that this new "coordination of online protection efforts" would be a massive boon to consumers while protecting a "free and open internet":

"The Memorandum of Understanding will be a critical benefit for online consumers because it outlines the robust process by which the FCC and FTC will safeguard the public interest,” said FCC Chairman Ajit Pai. “Instead of saddling the Internet with heavy-handed regulations, we will work together to take targeted action against bad actors. This approach protected a free and open Internet for many years prior to the FCC’s 2015 Title II Order and it will once again following the adoption of the Restoring Internet Freedom Order."

Again (as if pointing out facts matters with this FCC), there are numerous falsehoods being pushed here. One being that the 2015 net neutrality rules were "heavy handed," since by international standards they're pretty modest. Two being that the internet somehow magically flourished under Title I throughout history, which ignores the fact that ISPs were classified under Title II with no ill effect for years. Cable (2002) and DSL (2005) were only re-classified under Title I because ISPs promised this reduced oversight would result in incredible levels of competition that you may have noticed never actually materialized.

But the biggest problem the FCC is ignoring is that the FTC doesn't really have much solid authority over broadband providers, and what authority that exists is at risk of being obliterated by an ongoing AT&T court battle with the FTC.

So one, the FTC agency lacks rule-making capabilities, meaning it can only act after bad behavior has already occurred, and only if that behavior can be classified as "unfair or deceptive," which will give companies like Comcast ample wiggle room to pretend bad behavior was necessary for the health of the network. And the FTC is already over-extended and under-funded, so most meaningful ISP oversight will likely fall through the cracks. According to an interview earlier this year with former FCC boss Tom Wheeler, this of course was the ISP lobbyist plan from the beginning:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

Ironically, this doesn't even cover the biggest problem: that an AT&T legal battle against the FTC could obliterate what little authority the FTC does have over broadband providers. That case, revolving around AT&T's decision to throttle unlimited data customers then lie about it, could result in any company with even a modest common carrier component being able to dodge FTC authority almost entirely. Should AT&T win, the FTC is already on record clearly stating that companies could simply acquire small common carrier oriented businesses to dodge regulatory oversight:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

Mentioning this massive, looming loophole appears to simply have slipped Ajit Pai and the FCC's mind as they sell the public on this turd of a policy proposal. But it gets worse. According to telecom policy expert Harold Feld, even if the FTC manages to win that case, its authority over broadband ISPs remains so shaky, most of the net neutrality violations we've long been familiar with (from ISPs letting interconnection points congest to drive up costs for Netflix, to AT&T blocking Facetime to force users on to more expensive plans) wouldn't be policeable under this new regime.

In short, Feld makes it clear (again) that those stating that FTC authority and existing antitrust will protect us in the wake of net neutrality repeal don't have a solid understanding of how regulatory oversight of the broken telecom market actually works:

"...if you think AT&T or any other broadband provider has the right to decide what content and services subscribers should access — then this Order eliminates what you have considered nasty FCC overreach for the last 15 years (more, really, but at least since the 2002 Cable Modem Order). Don’t bother with handwaving about how you think it won’t happen, or how consumer pushback will keep ISPs from doing bad things, etc. On the question of “does the FTC have the power to stop a broadband provider from saying ‘I’m not going to let you use a particular service or access particular content,’ the answer is a flat out straight up “no.” Because for normal everyday businesses, absent a specific enforceable regulation, offering you some limited service is not “unfair” under 15 USC 45(a). Period. Full stop.

These are all notable, telling omissions by those claiming that fleeting FTC authority will be enough to police massive, predatory duopolies like AT&T and Comcast. It's simply not the case. And again, the goal here isn't just more reasonable or less heavy handed oversight of these giant companies, the goal is the elimination of nearly all meaningful oversight entirely. And while there's still numerous "free market" folks who believe gutting FCC oversight of natural monopolies like Comcast magically fixes a very broken market, that's simply not supportable by history or factual data.

Anybody that believes gutting oversight of some of the least liked and least competitive companies in America magically forges Utopia is either being willfully obtuse for personal financial gain, or they're taking ideological lessons from elsewhere and misapplying them to a broken market they simply don't understand. If allowed to pass, this push to gut oversight of these apathetic duopolies is going to have a profoundly negative impact on the health of the internet, the ability to innovate, and content and service competition for a generation. Pay attention, and don't be part of the problem.

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Posted on Net Neutrality Special Edition - 12 December 2017 @ 6:29am

The Folks That Built The Internet Tell The FCC It Has No Idea How The Internet Works

from the repeal-this dept

By now the FCC has made it clear it has absolutely no intention of actually listening to the public or to experts when it comes to its plan to repeal popular net neutrality rules later this week.

It doesn't really matter to the FCC's myopic majority that the vast majority of the record 22 million public comments on its plan think it's a stupid idea. It apparently doesn't matter than over 800 startups have warned the FCC that its attack on the rules undermines innovation, competition, and the health of the internet. And it certainly doesn't appear to matter than over 190 academics, engineers, and tech-policy experts have told the agency that its repeal will dramatically harm the internet -- or that the FCC's justifications for the reversal make no technical or engineering sense.

If the current FCC was actually capable of hearing these dissenting expert voices, they'd probably find this new letter from 21 of them worth a look. You might recognize some of the authors. They include Internet Protocol co-inventor Vint Cerf, Apple co-founder Steve Wozniak, several designers of the Domain Name System (DNS), World Wide Web inventor Tim Berners-Lee, public-key cryptography inventors Whitfield Diffie and Martin Hellman, and more.

In their letter, they effectively argue that the FCC's entire rationale for dismantling net neutrality protections rests on a flawed misunderstanding of how the internet actually operates. And worse, that the FCC has made absolutely no attempt to correct its flawed logic as this week's rule-killing vote approached:

"It is important to understand that the FCC’s proposed Order is based on a flawed and factually inaccurate understanding of Internet technology. These flaws and inaccuracies were documented in detail in a 43-page-long joint comment signed by over 200 of the most prominent Internet pioneers and engineers and submitted to the FCC on July 17, 2017.

Despite this comment, the FCC did not correct its misunderstandings, but instead premised the proposed Order on the very technical flaws the comment explained. The technically-incorrect proposed Order dismantles 15 years of targeted oversight from both Republican and Democratic FCC chairs, who understood the threats that Internet access providers could pose to open markets on the Internet."

Their previous, ignored warnings highlighted how the FCC's Notice for Proposed Rulemaking (NPRM) includes incorrect assessments and conflation of the differences between ISPs and edge providers (Netflix, content companies), incorrect claims in the NPRM about how the transition from IPv4 to IPv6 functions, how firewalls work, and more. Instead of consulting people that actually know how the internet works in public hearings, the FCC blindly doubled down on flawed reasoning and technical inaccuracies. Why? Because ISP-driven ideological rhetoric, not facts, are driving the repeal.

The letter notes how experts aren't the only ones the FCC is ignoring. It's also blatantly ignoring the will of the public, as well as turning a blind eye to efforts to undermine the public's only opportunity to make its voice heard during the open comment period of the proceeding:

"The experts’ comment was not the only one the FCC ignored. Over 23 million comments have been submitted by a public that is clearly passionate about protecting the Internet. The FCC could not possibly have considered these adequately. Indeed, breaking with established practice, the FCC has not held a single open public meeting to hear from citizens and experts about the proposed Order.

Furthermore, the FCC’s online comment system has been plagued by major problems that the FCC has not had time to investigate. These include bot-generated comments that impersonated Americans, including dead people, and an unexplained outage of the FCC’s on-line comment system that occurred at the very moment TV host John Oliver was encouraging Americans to submit comments to the system."

And again, while the FCC may be eager to ignore objective experts and the will of the public as it rushes to give VerizoCasT&T a sloppy kiss, the fact they did so will be playing a starring role in the lawsuits filed against the agency in the new year. In court the FCC will have to prove that the broadband market changed dramatically enough in two years to warrant a wholesale reversal in net neutrality policy. But critics will have plenty of ammunition in their attempts to prove the FCC engaged in "arbitrary and capricious" policy based predominately on fluff and nonsense, not hard data or engineering expertise.

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Posted on Techdirt - 11 December 2017 @ 3:27pm

FCC Boss 'Jokes' About Being A 'Verizon Puppet' At Tone Deaf Industry Gala

from the what's-a-little-regulatory-capture-among-friends? dept

As we've well-documented, Trump's FCC is currently under fire for not only gutting net neutrality, but for giving a crash course in what regulatory capture looks like. In just a short period of time the agency has moved to protect cable's monopoly over the cable box, gut media consolidation rules exclusively for the benefit of Sinclair broadcasting, protect prison phone monoplies, weaken broadband deployment metrics, kill broadband funding for the poor, and make it easier for business broadband monopolies to hamstring competitors and keep prices absurdly high.

That said, every year like clockwork, the FCC holds its "telecom prom" in Washington DC. It's traditionally an event where telecom industry executives, lobbyists, FCC staffers, consumer advocates and policy wonks all have a much-needed laugh and blow off steam. It's also a wonderful opportunity to line up to kiss the ring in the hopes of impacting future policy. Normally this sector shindig barely makes a blip on the media radar. But given the FCC's decision to continually give consumers the policy equivalent of a massive middle finger throughout 2017, this year's event took on a notably different tone.

Unsurprisingly, FCC staffers clearly thought this year's event was a great opportunity to make a few jokes about Pai's reputation as a walking rubber stamp for the telecom sector. After all, a little self-deprecation and ribbing has been part of the proceeding for years. But apparently, nobody told FCC staff writers that parody, satire and other forms of humor are supposed to be notably different from the reality you're lampooning.

After making numerous jokes about how he was "colluding" with industry giants like Sinclair broadcasting (you can watch a video of Pai's presentation here), Pai (a Verizon regulatory lawyer from 2001 to 2003) went so far as to present a video he made with Verizon exec Kathy Grillo. In it, Pai and Grillo engage in an adorable little skit where they collude to install Pai as a "puppet" chairman of the FCC at Verizon HQ back in 2003:

Verizon executive: "As you know, the FCC is captured by industry. But we think it's not captured enough. We want to brainwash and groom a Verizon puppet to install as FCC chairman. Think Manchurian Candidate."

Ajit Pai: "That sounds awesome."

Verizon executive: "I know, right? There are only two problems. First, this is going to take 14 years to incubate. We need to find someone smart, young, ambitious, but dorky enough to throw the scent off."

Ajit Pai: "Hello."

Verizon executive: "So you will do it?"

Ajit Pai: "Absolutely. But you said there was another issue?"

Verizon executive: We need to find a Republican who can win the presidency in 2016 to appoint you FCC chairman. I think our best bet is an outsider, but I have no idea who that would be. If only somebody can give us a sign.

Get it? Get it? The joke is that Pai, who used to work for Verizon, now works at the FCC to largely do Verizon's bidding, whether that's supporting the erosion of consumer broadband privacy rules or gutting net neutrality. The problem of course is that this "joke" is predominately true. If you dig back through Pai's record over the years as boss and as vanilla FCC Chairman, you'd be hard pressed to find a single time he stood up to Verizon or AT&T on any issue. That loyalty has even extended to voting down attempts to hold AT&T accountable for the outright defrauding of its own customers. Too funny!

Pai of course then proceeded to make several zingers that make light of concerns that he's gutting decades old media consolidation restrictions solely to the benefit of Sinclair broadcasting:

"People ask me, 'what keeps you up at night?' and it's actually pretty easy: the thought of the FCC having to resolve a retransmission dispute between Verizon and Sinclair," Pai said. "I mean, how do you choose between a longtime love and your newfound crush?"

Oh my! A revolving door regulator making light of the fact he can't decide which giant company he should mindlessly placate is utterly hilarious! Where oh where do you get your material from?

I'm sure there will be plenty of folks that try to argue that this isn't a big deal because they were just making a joke. But the destruction of net neutrality and the massive, negative impact it will have is decidedly unfunny. The FCC's refusal to help law enforcement discover who's behind the massive fraud and identity theft that occurred on the agency website is decidedly unfunny. The fact that the current FCC is the tech policy equivalent of a giant middle finger to consumers, startups, the poor and the health of the internet couldn't be any less funny. The closest it might get is absurdist.

There's healthy debate and ribbing over policy and then there's what the Ajit Pai's FCC is up to: a massive, wholesale dismantling of nearly all oversight of one of the least competitive and least liked duopolies in American industry. Followed by petty gloating and Orwellian missives about how giving a blanket policy handout to Comcast somehow restores internet freedom. We really haven't seen public anger at tech policy on this scale since SOPA, and that anger is likely to triple once the real-world impact of these protectionist policies begin to be truly felt over the next few years.

As we noted when the FCC tried to hide its plan behind the Thanksgiving holiday, these folks appear to have zero awareness of the massive backlash these extremist policies are fermenting (especially among Millennial voters). So while it's kind of adorable the FCC thinks regulatory capture and corruption are such a fucking hoot, we'll have to see if folks like Pai are still laughing in a few years when their obvious post-FCC political aspirations run face-first into those who remember this attack on net neutrality -- and the fact that 2017 sure as shit wasn't anything to laugh about.

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Posted on Techdirt - 8 December 2017 @ 9:21am

Shocker: Study Finds Cord Cutting Very Real, TV Execs Still Failing To Adapt

from the can't-stop-(r)evolution dept

You'll perhaps recall that broadcast and cable executives spent years denying that TV cord cutting was even happening. Ultimately that head-in-the-ground thinking "evolved" to the point where sector executives admitted that sure, cord cutters are real, but they're little more than 40-year-old nobodies living in mom's basement -- and not something to actually take seriously. As the data began to indicate that cord cutting was a very real phenomenon that thinking has finally started to subside, though the industry by and large has responded by doubling down on the bad ideas that brought us to this point in the first place.

There's still a sect of broadcast and cable executives and analysts that truly believe this shift from bloated, pricey channel bundles to cheaper, more flexible streaming alternatives is just a fad kooky kids are going through. And there's more than a few sector executives who believe this will all magically end as younger generations procreate and buy new homes. Of course that's not really supported by the facts, with most Millennials and younger generations being "cord nevers" -- who fail to see the point of subscribing to expensive bloated channel bundles in the era of YouTube and Twitch.

A new report by the Diffusion Group highlights again how this isn't just some temporary hiccup in the tastes of fussy viewers. The group predicts that at the current pace of customer defections from cable, the number of US households that subscribe to traditional cable will drop from 81% this year to 60% in 2030:

"Generally, TDG expects that the penetration of live multi-channel pay-TV services will decline from 85% of US households in 2017 to 79% in 2030. While statistically a loss of only 7%, it nonetheless illustrates the ongoing secular decline of a once healthy market space. TDG predicts that, by 2030, roughly 30 million US households will live without an MVPD service of any kind, be it virtual or legacy.

During this time, legacy MVPDs will experience considerable subscriber losses, due not only to long-term industry trends but also growing competition from virtual pay-TV providers. Consequently, legacy pay-TV penetration will fall from 81% of US households in 2017 to 60% in 2030, down 26%. At the same time, virtual pay-TV penetration will grow from roughly 4% of US households to 14%, up 350% but from a very small base.

And while some traditional, legacy TV viewers will flock to "virtual" streaming alternatives like AT&T's DirecTV Now or Dish's Sling TV, those services cost significantly less than traditional cable options (which usually clock in at $110 or more per month). That's why most cable providers have been so busy imposing arbitrary and unnecessary usage caps and overage fees on broadband connections, as it allows them to counter these lost TV revenues (with the added bonus of hamstringing competing services that aren't zero rated, something you'll see a lot more of thanks to the looming death of net neutrality).

Needless to say, the report highlights how cable providers still need to get out ahead of this shift, instead of just paying empty lip service to adaptation:

"TDG said early on that the future of TV was an app. Unfortunately, most incumbent MVPDs weren't taking notes," notes Joel Espelien, TDG Senior Analyst. "The question is no longer if the future of TV is an app, but how quickly and economically incumbents can adapt to this truth and transition to an all-broadband app-based live multi-channel system."

Again though, industry executives weren't just "not taking notes," they were actively trying to ignore a massive, wholesale shift in how their business sector operates. Most of the entrenched cable operators could easily nip this entire shift in the bud by simply competing on price and bundle flexibility. But instead, countless cable and broadcast executives continue to just double down on legacy turf protection and rampant rate hikes -- in the false belief that the traditional TV cash cow they've been milking for decades is somehow immortal.

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Posted on Net Neutrality Special Edition - 8 December 2017 @ 6:20am

India Embraces Full Net Neutrality As The U.S. Turns Its Back On The Concept

from the what-listening-to-the-public-looks-like dept

While the United States is busy giving the world a crash course on what telecom regulatory capture looks like, India is taking a decidedly different tack with net neutrality. Last year, the Telecom Regulatory Authority of India (TRAI) began laying the groundwork for some real, tough net neutrality rules aimed at protecting their internet markets and consumers from anti-competitive ISP behavior. Here in the States, our soon-to-be-discarded rules left some fairly gaping loopholes governing "zero rating," which allows ISPs to impose often arbitrary and unnecessary usage caps, then exempt their own content while hindering competitors.

But when the TRAI released its net neutrality guidelines (pdf) late last month, they made it clear that the rules would not only protect against throttling, blocking, or other ham-fisted anti-competitive behavior, but would also be putting the kibosh on zero rating. In previous statements, TRAI had made it abundantly clear that ISPs consistently use artificial scarcity and usage caps to engage in anti-competitive shenanigans via this practice (a realization the FCC in the United States only made after it was too late):

"...differential tariffs result in classification of subscribers based on the content they want to access (those who want to access non-participating content will be charged at a higher rate than those who want to access participating content). This may potentially go against the principle of non-discriminatory tariff. Secondly, differential tariffs arguably disadvantage small content providers who may not be able to participate in such schemes. This may thus, create entry barriers and non-level playing field for these players stifling innovation. In addition, ISPs may start promoting their own websites/apps/service platforms by giving lower rates for accessing them."

Indian consumers received a crash course on the downside of zero rating thanks to Facebook and its "Free Basics" program. Under the initial version of Free Basics, users obtained free access to a walled garden version of the internet, filled with Facebook-curated content. And while Facebook repeatedly tried to claim it was simply really concerned about helping poor Indian farmers, critics began to notice that Facebook was really just trying to corner the ad market. They also began to realize that letting the social media giant determine winners and losers online wasn't a particularly smart idea.

Facebook boss Mark Zuckerberg responded indignantly to these charges, arguing that those that didn't like Facebook's plan to AOL-ify the internet in India were simply enemies of the poor. But critics like the EFF persisted, noting that Facebook's approval process not only banned sites that used encryption, but was even opposed by many content partners. Outfits like Mozilla, meanwhile, argued that if Facebook was so concerned with connecting the poor, why not pay to connect them to the actual internet and avoid any controversy?

Despite some pretty sleazy lobbying efforts by Facebook (including trying to trick users into opposing real net neutrality), Indian regulators proceeded last month to ban this and all other anti-competitive shenanigans, crafting what are now some of the toughest net neutrality rules anywhere. Not only is zero rating banned, but so are the more traditional ways ISPs try to abuse a lack of competition (throttling, outright blocking, unfair paid prioritization). Needless to say, net neutrality activists in India are thrilled that their regulators actually listened to consumers and innovators:

"The debate ... that this ruling was about was essentially the same one that’s taking place in the US, about whether certain sites should be available at faster speeds,” said Nikhil Pahwa, a digital rights activist who's been a leader in India's fight for net neutrality. “And the Indian regulators essentially ruled that there needs to be non-discriminating practices by [internet service providers], where they don’t give preferential treatment to one side or the other."

Pahwa has been a vocal advocate for net neutrality in India and was a key player in getting India to stop differential pricing for data services last year.

“Net neutrality ensures that there’s free and fair competition on the internet, instead of a situation without net neutrality where the [internet service providers] pick winners,” Pahwa said, adding that “India’s been at the forefront of this battle."

This is all of course the polar opposite of what's now occurring in the States, where FCC boss Ajit Pai is preparing to obliterate what were already quite modest protections by international (Japan, Canada, India, The Netherlands) standards. And, much like the record 20+ million consumers that oppose Pai's plan, Indian Americans are equally flummoxed by FCC boss Ajit Pai's grotesque handout to what's potentially the least-popular industry in America.

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Posted on Techdirt - 7 December 2017 @ 12:11pm

New York City Hotels Say Obnoxious $25 'Destination Fee' 'Improves The Customer Experience'

from the that'll-work dept

Taking a page from the telecom and banking sector playbooks, New York City hotels have decided to add a $25 "destination fee" just for the honor of being able to sleep somewhere near the audio visual cacophony that is Times Square. Major hotel chains like Hilton, Marriott and Starwood are all adding the new destination fees, which aren't part of the advertised rate -- and are only added to the final tally at checkout. Said fees mirror other "resort fees" used to jack up advertised rates in other destination locations like Hawaii, the Florida coast, or Las Vegas.

In many instances, the fee is being called an "urban destination charge," and is being applied each day of a customer's stay:

"But this week, a guest booking a room at the Hilton New York was alerted as he finalised payment that a “Daily Mandatory Charge” of $25 would be added to the room rate, covering an “Urban Destination Charge”, “premium” internet access, local and freephone calls, and a total of $25 credit for food and drink in the hotel.

The credit, it turned out, is a one-off figure – though the Urban Destination Charge is due every day of the stay."

If you've paid attention to the problems in the telecom sector, you've probably realized that this is now standard industry procedure. Cable and phone companies alike often make up entirely nonsensical fees (with names like the Internet Cost Recovery fee or Broadcast TV fee) with the express goal of advertising one price, then charging another. To add insult to injury, they'll then crow about how their advertised rate has remained the same from year to year. That's been an obvious case of false advertising for going on a decade, yet legal or regulatory accountability for the misleading charges remains elusive at best.

In telecom, the FCC had made a little noise about cracking down on the misleading surcharges in the form of a "nutrition label" for broadband that would clearly disclose any caveats, but that effort appears to have stalled. In the hotel industry where competition makes such action less pressing, the FTC gave hotels a fairly tepid warning about the practice in 2012, stating that the practice of hidden fees "may be deceptive" and "may violate the law." Hints that a new FTC crackdown on the practice was coming similarly emerged last year, only to apparently disappear back into the swamp of regulatory intent and good intentions.

Just like in the telecom industry, when hotels are asked whether jacking up the advertised rate post sale could be construed as predatory and obnoxious, they'll usually trot out some rubbish about how the practice enhances the "customer experience." Take this bit of prattle from Starwood owners Marriott International, for example:

"The Destination Fee was created as a way to lift the guest experience by providing added value to a hotel stay. Each hotel may offer a combination of hotel services (such as dry-cleaning, pressing or a food & beverage credit); local experience vouchers for free/discounted events and attractions (such as city tours), and/or access to fitness programs (such as yoga or cycling) in nearby studios..."The implementation of the Destination Fee gives us the opportunity to test how a bundle of benefits that our research shows are valuable to guests might enhance the stay."

Of course that's bullshit, since not knowing what the hell you'll actually be paying for your room kind of puts a damper on the entertainment value of the whole affair, and users are usually docked these fees regardless of whether they use amenities or not. The goal again is to falsely advertise a lower rate, full stop. That may be a problem for competitors foolish enough to clearly advertise their real rates, since they superficially could appear to be a worse value. On the flip side, hitting your visitors with obnoxious, hidden fees is a wonderful way to help drive business to the share economy competitors these companies have been whining about for the better part of a decade.

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Posted on Net Neutrality Special Edition - 7 December 2017 @ 6:17am

FCC Boss Lies Again, Insists Net Neutrality Harms The Sick And Disabled

from the disinformation-nation dept

For a decade now one major ISP talking point against net neutrality is that it hurts the sick and disabled. Verizon, for example, has tried to pretend that net neutrality rules hurt the hearing impaired because it prevents them from getting access to prioritized medical services like video relay or other technologies. Comcast has frequently trotted out this argument as well, as in an FCC filing (pdf) earlier this year claiming that net neutrality rules simply must die because they're preventing the sick and disabled from getting access to advanced telemedicine technologies:

"...the Commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public. For example, a telepresence service tailored for the hearing impaired requires high-definition video that is of sufficiently reliable quality to permit users “to perceive subtle hand and finger motions” in real time. And paid prioritization may have other compelling applications in telemedicine. Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it."

You may be shocked to learn that this isn't, nor has it ever been, true. Both the discarded 2010 rules, and the 2015 rules, carve out mammoth, tractor-trailer-sized exemptions for medical services. In the 2015 rules, the FCC was careful to distinguish between "Broadband Internet Access Services (BIAS)" (generalized internet traffic like browsing and app data) and "Non-BIAS data services," which are often given prioritized, isolated capacity to ensure lower latency, better speed, and greater reliability. VoIP services, pace makers, energy meters and all telemedicine applications fall under this category and are exempt from the rules.

You'll be equally shocked to learn that this has nothing to do with helping the sick -- and everything to do with making more money. ISPs want to eliminate the paid prioritization restrictions so they can sell content and service companies an unfair advantage in the market. Deals that give industry giants prioritization, optimal routing and the lowest latency, while startups, non-profits and educational institutions sit twiddling their thumbs at a notable disadvantage. This goal is precisely why Comcast is already walking back its promises on this front as repeal nears.

You'd think, as FCC Boss so immensely familiar with the rules he's so eager to dismantle, that Ajit Pai would realize that the claim that net neutrality hurts the sick is a dated and grotesque bit of scare mongering. Yet last week, as he tried to defend himself from massive criticism that he was selling out consumers and the health of the internet, Pai gave yet another speech (pdf) during which he doubled down on the idea:

"By ending the outright ban on paid prioritization, we hope to make it easier for consumers to benefit from services that need prioritization -- such as latency-sensitive telemedicine. By replacing an outright ban with a robust transparency requirement and FTC-led consumer protection, we will enable these services to come into being and help seniors."

Again: there is no "outright ban," and the rules clearly already carve out giant holes for this traffic. Not to be outdone, this claim that killing net neutrality magically helps the sick was also included in the FCC's facts-optional fact sheet (pdf) it circulated last week to "set the record straight":

"FACT: Restoring Internet freedom will lead to better, faster, and cheaper broadband for consumers and give startups that need priority access (such as telehealth applications) the chance to offer new services to consumers."

But again, nothing in the rules stopped this from happening already, meaning that Pai once again feels the need to lie about something that can be fact-checked by anybody willing to spend a little time actually reading the 2015 rules (pdf). Of course when you're pushing what's potentially the most despised bit of tech policy kerfuffle since SOPA with little to no support from the actual public, manufactured bogeymen are apparently all that's left to fall back on.

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Posted on Techdirt - 6 December 2017 @ 11:56am

Google And Amazon Are Harming Consumers And Behaving Like Obnoxious Toddlers

from the tit-for-tat dept

You might recall that a few years ago, Amazon began banning competing streaming hardware like Apple TV and Google's Chromecast from the Amazon store because these products competed with Amazon's own streaming hardware. At the time, you might also recall that Amazon offered up the historically stupid claim that this was done simply to avoid "customer confusion":

"Over the last three years, Prime Video has become an important part of Prime," Amazon said in the e-mail. "It’s important that the streaming media players we sell interact well with Prime Video in order to avoid customer confusion."

That decision has only resulted in an ever-escalating game of tit for tat that has started to bubble over in recent months. Around three months ago, YouTube decided to block YouTube from working on Amazon's Echo Show hardware, pushing the bogus claim it was due to a "broken user experience." In response, Amazon expanded its blacklist of Google products by refusing to sell Google Nest hardware as well. This was already bad enough, but the escalating game of "who can be the most obnoxious to paying customers" was taken to yet another level this week.

For a while, Amazon managed to create a workaround that directed Echo Show users to the web version of YouTube, but Google/YouTube managed to find a way to block that too as of today. YouTube is also now informing owners of Amazon's Fire TV products that YouTube will no longer work on that hardware either, starting January 1. Needless to say, this is creating a broken experience on both hardware platforms, and customers are clearly annoyed:

In a statement, Google all but admits that the two companies are engaged in a giant game of jackass patty cake:

"​We’ve been trying to reach agreement with Amazon to give consumers access to each other's products and services. But Amazon doesn't carry Google products like Chromecast and Google Home, doesn't make Prime Video available for Google Cast users, and last month stopped selling some of Nest's latest products. Given this lack of reciprocity, we are no longer supporting YouTube on Echo Show and FireTV. We hope we can reach an agreement to resolve these issues soon."

There are numerous problems here. One being that none of this is really necessary, and that instead of settling their grievances like professionals, the two companies thought it would be a good idea instead to engage in an epic attempt at pettiness which harms openness, innovation, consumer trust, and the consumer experience. But this is also another example of how in the modern era, you don't really own the products you think you're buying, with companies more than happy to eliminate integral functionality at a moment's notice -- without much concern for the end user.

The dispute is so idiotic, it even prompted US Telecom, an AT&T-funded ISP lobbying organization, the opportunity to take a few pot shots at Google in a statement it circulated to the media yesterday:

"Broadband ISPs are committed to providing an open internet for their customers, including protections like no content blocking or throttling. Seems like some of the biggest internet companies can’t say the same. Ironic, isn’t it?"

When you're being trash-talked by what's currently the most-hated industry in America, you know you have a problem. Granted, US Telecom is engaged in some major conflations here. One, Google hasn't really clearly supported net neutrality since around 2010 or so, making this obnoxious, but not necessarily hypocrisy. Two, Amazon customers at least have the option to use other hardware, something you can't say about broadband subscribers, who usually only have access to one ISP at the FCC's 25 Mbps broadband definition threshold. This isn't a net neutrality violation, it's just stupid.

There really is no winner here. Google and Amazon could simply settle their differences like countless businesses do every hour of every day. Instead, they've decided that the best course of action was a downward spiral that punishes millions of consumers simply because the two companies' executives are unwilling behave like functional adults.

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Posted on Techdirt - 6 December 2017 @ 6:26am

The FCC Tried To Hide Net Neutrality Complaints Against ISPs

from the nothing-to-see-here dept

When FCC boss Ajit Pai first proposed killing popular net neutrality protections (pdf), he insisted he would proceed "in a far more transparent way than the FCC did" when it first crafted the rules in 2015. That promise has proven to be a historically-hollow one.

Pai's agency is already facing numerous lawsuits for refusing to disclose conversations with ISP lobbyists about the plan to kill net neutrality, refusing to disclose net neutrality complaints filed with the agency, refusing to be transparent about a DDoS attack the FCC apparently concocted to downplay the "John Oliver effect," and for ignoring FOIA requests related to its failure to police website comment fraud during the public comment period.

You'll recall that time and time again, Pai and friends have tried to claim that net neutrality isn't a real problem, and that the harms created by letting giants like AT&T and Comcast run roughshod over an uncompetitive broadband sector are largely hallucinated. As such, the National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FOIA) request back in May to obtain the 45,000 consumer net neutrality complaints filed since the rules took effect in 2015, arguing that they might just prove useful to the conversation given the FCC's claim that net neutrality isn't a real problem.

Initially the FCC spent much of this year stalling in the release of the complaints, insisting that making them public would be too "burdensome" for agency staff. After growing legal and public pressure, the FCC finally released upwards of 60,000 pages-worth of complaints by consumers who say their ISP behaved anti-competitively in violation net neutrality. But the agency is still refusing to include these complaints in the net neutrality proceeding docket, and refuses to include details on how ISPs responded to these complaints in the docket either:

"The FCC has not produced any additional documents since we filed an Application for Review [on November 14]," NHMC Special Policy Advisor Gloria Tristani told Ars today. Besides carrier responses, "we are missing other documents as well, such as attachments to consumer complaints, consumer rebuttals, etc." The FCC has not explained why it didn't provide those documents, according to the NHMC."

Again, this appears to be par for the course for this FCC. It's fairly clear by now the FCC refused to do anything about the fraud during the comment period because it believed that raising questions about the validity of the comment process would help downplay the massive public opposition to its plan. Similarly, refusing to include real consumer net neutrality complaints in the docket helps prop up Ajit Pai's patently-false claim that net neutrality (which again, is just a symptom of a lack of competition in broadband) isn't a real problem. It's the same MO, repeated over and over and over again.

Needless to say, this entire process has been raising the hackles of fellow agency Commissioners that actually believe that the lack of competition in the broadband market is a real thing:

Other Commissioners have noted how the difficulty in getting this FCC to release these complaints is just one small part of an overall culture of dysfunction and non-transparency at Trump's FCC. Pai's fellow FCC Commissioner Jessica Rosenworcel, for example, issued a statement (pdf) pointing out how between the NY's investigation of fraudulent comments, the GAO's investigation of the FCC's alleged DDoS attack, and all the lawsuits already dogging the agency, the FCC should most assuredly slow its roll a little bit:

"Distressingly, the FCC has been unwilling to assist a law enforcement investigation into some of these problems. That’s unacceptable. The FCC needs to correct this course immediately. The integrity of our process is at stake. The future of the Internet is at stake. Until we get to the bottom of this, no vote should take place until a responsible investigation—like that in New York—is complete."

Of course the FCC has absolutely zero intention of delaying its December 14 vote to kill net neutrality, because that's precisely what it promised giant ISPs they'd do. And, after all, failing to live up to your promise to sector lobbyists might just indicate an overall lack of integrity at the current FCC, and we certainly wouldn't want that.

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Posted on Techdirt - 5 December 2017 @ 6:26am

Ajit Pai Doesn't Want You Talking About Court Ruling That Undermines His Bogus Claim That The FTC Will Protect Consumers

from the who's-desperate-now dept

We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.

That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

So again, that's the FTC warning that the AT&T court case could leave it rudderless in any attempt to protect consumers. Odd, given that Ajit Pai and his FCC staffers have been promising everyone that the FTC (which was already under-funded, over-extended, and lacked rulemaking capabilities) was the superior option when it comes to protecting consumers and competition (you can hear former FCC boss Tom Wheeler talk about how this promise is bunk here).

Fast forward to this week. Seeing an opportunity to highlight this blatant gift to the telecom sector, a coalition of 40 consumer advocacy and digital rights groups (as well as New York City) are hoping to use AT&T's legal fight with the FTC as a good reason to delay the FCC's December 14 vote to kill net neutrality. The coalition sent a a letter (pdf) to FCC boss Ajit Pai, arguing that it's irresponsible to plan a wholesale dismantling of net neutrality when one of Pai's central justifications for it (that the FTC will rush in and fill the enforcement gap) may be entirely untenable:

"Rushing to a vote before the Ninth Circuit resolves this decision cavalierly risks the purported safeguards that you and other supporters of the Draft Order have repeatedly declared will protect consumers from abusive or anti-competitive practices. Astoundingly, after committing the entire future of consumer protection from broadband access providers to the FTC, the Draft Order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job[...] The question that should concern the Commission is whether or not the en banc panel will likewise deprive the FTC of jurisdiction over broadband access providers."

While an excellent point, this isn't likely to sway the FCC's thinking because, again, weakening FCC and FTC authority is the entire point and is exactly what large ISP lobbyists have been gunning for. Companies like Comcast, AT&T and Verizon would obviously prefer it if neither the FCC nor FTC had the authority to actually protect consumers from abuse of a lack of competition in the sector. Granted, if sound logic and compelling points could make the FCC backtrack from its extremely unpopular attack on net neutrality, Ajit Pai and friends would have retreated from this myopic assault months ago.

As such, it's not too surprising to see that Pai's response to a request for a delay involved calling net neutrality supporters "desperate":

"This is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai's plan to restore Internet freedom has stalled. The vote will proceed as scheduled on December 14."

What happens next? Once the FTC and FCC are left rudderless, ISPs have made it clear that they want the FCC to slap down any states that get any funny ideas about policing anti-competitive behavior in the sector, whether that comes in the form of net neutrality violations or privacy abuses. FCC staffers have made it equally clear that they're happy to oblige. Again, this all ends with little to no ability to protect consumers and competition from AT&T, Verizon or Comcast's monopoly strangleholds over the last mile at any level. That might be ok if the government fixed the sector's competition problems first, but Ajit Pai's FCC has made it abundantly clear that trying to hide the sector's competition problems (a prime symptom of regulatory capture) is going to take top priority.

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Posted on Techdirt - 4 December 2017 @ 6:38am

New York AG Provides Tool To Help You Check If Your Name Was Used To Support Killing Net Neutrality

from the shenanigans dept

So we've noted several times now how the FCC's open comment period for its Orwell-inspired "Restoring Internet Freedom" net neutrality proceeding was simply awash in all manner of fraud. From bots that filled the comment proceeding with bogus support from fake or even dead people, to fake DDoS attacks intended to downplay the wash of angry users that flooded to the agency's website in protest. All of this stuff is more than likely to pop up in the inevitable lawsuits that are filed in the new year after the net neutrality repeal formally hits the federal register.

In addition, New York Attorney General Eric Schneiderman recently stated he has been conducting an investigation for the last six months into these bogus comments. In a letter recently sent to FCC boss Ajit Pai, Schneiderman notes that he reached out to the FCC nine times over a period of five months to get the agency's help in getting a closer look at the APIs and server logs related to the fraud campaign. And that time and time again the FCC ignored its request:

"Specifically, for six months my office has been investigating who perpetrated a massive scheme to corrupt the FCC’s notice and comment process through the misuse of enormous numbers of real New Yorkers’ and other Americans’ identities. Such conduct likely violates state law — yet the FCC has refused multiple requests for crucial evidence in its sole possession that is vital to permit that law enforcement investigation to proceed.

We reached out for assistance to multiple top FCC officials, including you, three successive acting FCC General Counsels, and the FCC’s Inspector General. We offered to keep the requested records confidential, as we had done when my office and the FCC shared information and documents as part of past investigative work.

Yet we have received no substantive response to our investigative requests. None."

That mirrors my own experience in trying to get the FCC's help after somebody hijacked my identity (and the identity of one of my employers) to falsely claim (twice, using two different bogus addresses) I support killing net neutrality protections. The general consensus is that while the FCC isn't likely directly behind this fraudulent activity, it's refusing to help because 1) exposing the culprit could expose the industry-linked groups behind it and 2) raising questions about the legitimacy of the one chance the public had to give feedback helps downplay the massive public opposition to the FCC's plan.

Regardless, the NY AG is proceeding with its investigation without the FCC's help. As part of that push, it has revealed a new tool on its website that lets you check to see if your name was improperly used to support killing net neutrality. Those findings are then submitted to the AG for use in its investigation and as evidence in any looming lawsuits.

Again, this is just one potential avenue of inquiry into this entire, rather grotesque affair. The FCC is also being sued by journalists for ignoring FOIA requests related to the comment fraud, for refusing to be transparent about its meetings with large ISPs eager to see the rules repealed, and for hiding details of the DDoS attack that wasn't. These will all be joined by numerous lawsuits in the new year filed by consumer groups and smaller companies, who are likely chomping at the bit to prove the FCC violated agency procedure (and potentially the law) in its rush to give consumers the tech policy equivalent of a giant middle finger.

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Posted on Techdirt - 1 December 2017 @ 6:18am

ISPs Are Already Using The FCC's Planned Net Neutrality Repeal To Harm Consumers

from the somebody-is-killing-all-the-babysitters dept

So if you've been reading Techdirt, you know that the FCC's myopic assault on net neutrality is just a small part of a massive, paradigm-shifting handout to the uncompetitive telecom sector that could have a profoundly negative impact on competition, innovation, privacy, and consumer welfare for the next decade.

The government telecom industry's plan goes something like this: gut nearly all FCC oversight of giant ISPs (including the modest privacy protections killed earlier this year), then shovel any dwindling remaining authority to an FTC that lacks the authority or resources to actually protect competition, businesses and consumers. If any states get the crazy idea to step in and try to fill in the consumer protection gaps, the FCC (again, at Comcast and Verizon's lobbying behest) has clearly stated it will try and use federal authority to slap them down (so much for that dedication to "states rights" applied only when convenient).

You should, hopefully, see how this could pose problems for anybody other than Charter, Comcast, Verizon and AT&T. In fact, Charter lawyers this week are already providing us with a look at precisely what this is going to look like in practice.

You might recall that earlier this year, New York Attorney General Eric Schneiderman sued Charter for effectively ripping off consumers. Among the numerous charges levied in the complaint (pdf) was the fact that Charter falsely advertised speeds it couldn't deliver, used all manner of misleading fees to jack up the cost of advertised services (something it's facing other lawsuits over), and may have manipulated peering point capacity to force content and transit operators into paying more money.

The complaint features Charter executives on e-mail indicating they manipulated congestion levels to trick SamKnows, a firm the FCC employs to track whether ISPs deliver the speeds they advertise (instead of, you know, fixing the problem by adding needed ports and capacity):

"Our Sam Knows scores are like watching a slow-motion train wreck. We need to get in front of this. One thing I think we may need to be prepared to do is just give more ports to Cogent during sweeps month [when FCC results are measured for purposes of the MBA report]. We don’t have to make any promises, we just have to make it work temporarily."

You might recall that when the FCC's 2015 net neutrality rules indicated the FCC might take a closer look at such interconnection shenanigans, said interconnection fisticuffs magically ceased. And now, with the FCC poised to repeal net neutrality rules, Charter lawyers are busy arguing in court that this federal authority (which in reality is lobbyist-induced apathy) trumps any state attempts to protect consumers:

"Of particular relevance here, the Draft Order includes an extensive discussion of the interplay between federal and state law, including with respect to the transparency rule on which Charter has relied in arguing that federal law preempts the Attorney General’s allegations that Time Warner Cable made deceptive claims about its broadband speeds," writes Charter attorney Christopher Clark, from Latham & Watkins. "Consistent with the FCC’s statements in prior orders and enforcement advisories, the Draft Order 'conclude[s] that regulation of broadband Internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork of separate state and local requirements.'"

In other words, the FCC's handout to industry is already providing them with ammunition to dodge accountability for dodgy business practices on the state level as well. And again, this goes well beyond net neutrality -- it's a wholesale dismantling of oversight for some of the least-competitive and least ethical companies in America (if you need evidence of this, consult the Techdirt archives). Needless to say, Schneiderman's office disagrees with Charter's argument that its case should be derailed because the federal government no longer cares about consumer welfare:

"Spectrum-TWC failed to maintain enough network capacity in the form of interconnection ports to deliver this promised content to its subscribers without slowdowns, interruptions, and data loss," stated an opposition brief. "It effectively 'throttled' access to Netflix and other content providers by allowing the ports through which its network interconnects with data coming from those providers to degrade, causing slowdowns. Spectrum-TWC then extracted payments from those content providers as a condition for upgrading the ports As a result, Spectrum-TWC’s subscribers could not reliably access the content they were promised, and instead were subjected to the buffering, slowdowns and other interruptions in service that they had been assured they would not encounter."

Again, companies like Charter and Comcast are breathlessly promising that nothing will change in the wake of the net neutrality rules' repeal. But that's not only an obvious lie (why spend millions to repeal consumer protections you have no intention of abusing?), but it overshadows the fact that, again, this isn't just about net neutrality. It's about gutting oversight of these duopolies almost entirely on both the federal and state level, leaving few, if any agencies capable of holding these companies accountable the next time they try to abuse a lack of market competition.

In other words, if you thought behavior by giant cable companies like Comcast and Charter is obnoxious now, you likely haven't seen anything yet. Unless you're one of these folks that truly believes that removing all regulatory oversight of natural mono/duopolies magically fixes everything -- in which case your beliefs are about to be tested.

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Posted on Techdirt - 30 November 2017 @ 6:36am

As Net Neutrality Repeal Nears, Comcast's Promise To Avoid 'Paid Prioritization' Disappears

from the that-was-then,-this-is-now dept

Despite having spent millions on repealing broadband privacy and soon net neutrality, Comcast's lobbyists and PR folks have spent the last few weeks claiming that nobody has anything to worry about because Comcast would never do anything to harm consumers or competitors. This glorified pinky swear is likely going to be cold comfort for the millions of consumers, small businesses, startups, and entrepreneurs trying to build something (or god forbid directly compete with Comcast NBC Universal) over the next decade.

But while Comcast is busy trying to convince everyone that gutting regulatory oversight over an uncompetitive broadband market will only result in wonderful things, they're simultaneously back peddling on past claims to not violate net neutrality.

Earlier this week, Ars Technica penned an article discussing how Comcast's past promises to not engage in "paid prioritization" have magically disappeared. Paid prioritization is the act of letting one company (say, Comcast-owned NBC) buy a faster, lower-latency pipe than its competitors. Obviously, such a scenario creates a market whereby deep-pocketed companies can pay for an unfair advantage over startups, non-profits, or smaller companies. That's not to be confused with enterprise prioritization or the prioritization of medical services, though that's a conflation Comcast lobbyists really enjoy making.

Back in 2014 when the debate was at its peak regarding the creation of the 2015 rules, Comcast repeatedly promised that paid prioritization would never be something it engaged in. Ars does a solid job highlighting how this promise has all-but disappeared from Comcast and Comcast-backed NCTA lobbying and policy materials over the last few years. This apparently angered Comcast PR rep Sena Fitzmaurice, who has previously and repeatedly yelled at me for calling Comcast's top lobbyist a lobbyist (you're supposed to call him Comcast's "Chief Diversity Officer" to help him tap dance around lobbying disclosure rules).

Fitzmaurice spent most of the day on Twitter trying to direct annoyed readers to an alternate, less skeptical CNET article, while insisting that Ars story author Jon Brodkin had somehow hallucinated Comcast's backtracking:

Brodkin, in turn, pointed out that Fitzmaurice repeatedly dodged hard questions about said backtracking, while hiding behind semantics:

He then penned a second article, with the help of the Internet Wayback Machine, highlighting very clearly how Comcast pulled all references to its promise to not engage in "paid prioritization." Much of this purging occurred, coincidentally, the very same day that Ajit Pai first announced his plan to roll back the net neutrality protections:

"Starting in 2014, (Comcast's website) contained this statement: "Comcast doesn't prioritize Internet traffic or create paid fast lanes."

That statement remained on the page until April 26 of this year, according to page captures from the Internet Archive's WayBack Machine. But on April 27, the paid prioritization pledge was nowhere to be found on that page and remains absent now.

What changed? It was on April 26 that FCC Chairman Ajit Pai announced the first version of his plan to eliminate net neutrality rules. Since then, Pai has finalized his repeal plan, and the FCC will vote to drop the rules on December 14.

To drive home the point, Brodkin posted a screen shot of the Comcast website pledge before the FCC announced its repeal of the rules on April 27:

And then after the FCC made it clear it was going to ignore the public and dismantle the rules:

You'll note, perhaps, that Comcast's promises get shorter and shorter the closer it gets to achieving its goal of fewer consumer protections. Oddly, Fitzmaurice has yet to complain about the updated version of the Ars story.

Comcast's track record on this sort of thing isn't particularly hot. You'll recall Comcast helped send the net neutrality debate into overdrive when it was caught throttling all upstream BitTorrent traffic without telling anybody, then lied that it was doing so until the Associated Press proved it. In the years since Comcast has gotten much more creative in abusing a lack of competition in the sector, whether that's by imposing unnecessary usage caps that only its own content is exempt from, blocking competing hardware and services for no good reason, or interconnection shenanigans.

The idea that Comcast will take full advantage of the one two-punch of limited competition and apathetic regulators is all but a certainty according to history. It's likely that for a year or two after repeal, Comcast and other ISPs will avoid getting too heavy handed in the hopes of convincing folks that net neutrality worries were over-stated. After that, you can be fairly certain that Comcast will slowly but surely engage in tricks old and new to leverage a lack of competition to its full, tactical advantage. You can also be fairly certain that while this is happening, you'll be told you're most definitely hallucinating the entire affair.

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Posted on Techdirt - 29 November 2017 @ 10:44am

Mark Cuban Still Has Absolutely No Idea How Net Neutrality Works

from the double-down-on-misunderstanding dept

To be very clear, there are numerous subjects Mark Cuban has a very solid understanding of, ranging from his support of patent reform and the benefits of improving antiquated film release windows to highlighting the SEC's disdain for the 14th and 4th Amendments during his fight over insider trading allegations. But when it comes to net neutrality, modern telecom competition, and the problems caused by letting unchecked duopolists like Comcast run amok, Cuban has pretty consistently made it abundantly clear he has absolutely no earthly idea what he's talking about.

The latest case in point, Cuban trotted out this little gem last week while public outrage at the FCC's grotesque handout to the telecom sector was peaking:

After taking a pretty severe beating on Twitter, Cuban subsequently doubled down, proclaiming that net neutrality should be killed because, you know, nipplegate happened thirteen years ago:

So look, if you've read our primer on net neutrality or paid attention to our coverage of this subject for the last decade, you should know by now that net neutrality violations are just a symptom of the disease that is a lack of competition in the broadband sector. Net neutrality rules were a temporary, imperfect solution to the fact that nobody in either party seriously wants to address this problem because it would stop campaign contributions from flowing. As a result, our state and federal legislative system is systemically infected by lawmakers willing to sell out the public and the internet for some pocket change.

The result of this isn't pretty. AT&T and Verizon enjoy monopoly control over cell tower backhaul and business data services (BDS). Cable companies like Comcast enjoy a growing monopoly over fixed-line broadband because telcos aka "the market" are refusing to invest in rural and second-tier urban markets. With no competition and apathetic regulators, we've witnessed privacy infractions, net neutrality violations, legendarily-awful customer service, deployment redlining, and endless price hikes (again, all just symptoms of a lack of competition and regulatory capture) time, and time, and time again.

This isn't magically fixed by gutting some modest consumer protections. And keeping net neutrality intact certainly doesn't "put Donald Trump in control of the Internet." There's simply no logical basis for that claim. In fact, passing net neutrality rules is a perfect example of one of the few times over the last twenty years that the FCC actually listened to consumers and was willing to stand up to the nation's powerful telecom duopoly. Punishing them for this based entirely on your gut feelings and misunderstanding of how the telecom sector works only helps ensure that won't be happening again anytime soon.

Cuban (who has sidelined as a commercial pitchman for AT&T), subsequently tried to clarify that the real threat to the internet isn't lumbering telecom monopolies, but Apple and Google app stores:

This idea that the real "neutrality problem" is Google and Apple ("search neutrality" or "app store neutrality") has long been an ISP-driven bogeyman we've deflated time and time again. Users have a choice not to use the Google or Android app stores or devices. They have a choice of search engines. But in telecom, there is no choice. If you're lucky, you have a choice of a lumbering cable company or a telco that refuses to upgrade its network. Usually they're engaged in non-price competition because, again, we've let them dictate state and federal protectionism for a generation.

Cuban is part of a subset of folks for whom net neutrality challenges their belief that all regulation is automatically always bad and the government is entirely incapable of ever doing good. The problem is that's not only overly simplistic (it prevents you from actually weighing the merits of each instance of regulation intelligently), it doesn't really work in the telecom sector. If you obliterated the FCC tomorrow, you'd still be stuck with a lumbering monopoly with a stranglehold over the last mile. A stranglehold that bipartisan corruption on the state and federal level would ensure would never be threatened by disruption or innovation.

Net neutrality protects consumers, small businesses, and startups until we can find a way to drive more competition to the market. Some (including Cuban) seem to labor under the belief that advancements in wireless will have us all swimming in dirt-cheap connectivity in no time, making net neutrality irrelevant. Except wireless connectivity is spotty, carriers are booting users off these networks due to low ROI, these connections are usually capped, throttled and expensive, and again, AT&T and Verizon have a monopoly on the backhaul market feeding it all (but don't worry, Trump's FCC is busy protecting that monopoly, too).

You can get rid of net neutrality rules if you first embrace policies that actually drive broadband competition. But we're not doing that. Under Trump's FCC, Ajit Pai is actually busy lowering the base definition of broadband to try and obfuscate this lack of competition. Folks like Pai aren't even capable of admitting there's a problem, making the idea that the former Verizon lawyer wants to fix the problem preposterous. Meanwhile Cuban has been an outspoken Trump critic; are we to presume that Trump magically, mystically got this right? 20 million consumers don't think so.

This isn't the first time we've been over all this. I made many of the same points back in 2014 when Cuban was busy telling anybody who'd listen that net neutrality rules would destroy the internet and prevent sick people from getting necessary medical care (both, again, being lazy canards circulated by ISP lobbyists). Check out the last paragraph of this 2014 post for some unintentional, unfortunate clairvoyance on my part.

It's disappointing that Cuban isn't interested in listening to the countless experts like the EFF telling him that net neutrality rules are incredibly important -- especially for the kind of small businesses Cuban used to represent. It's equally unfortunate that folks that look up to Cuban for guidance are being told to root against their own best self interests -- and to support a Trump agenda item that may just be the most unpopular decision in tech policy history.

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Posted on Net Neutrality Special Edition - 29 November 2017 @ 6:45am

The FCC's Attack On Net Neutrality Is Based Entirely On Debunked Lobbyist Garbage Data

from the post-truth-apocalypse dept

For several years now one of the broadband industry's biggest criticisms of net neutrality is that it "utterly devastated" investment into broadband networks. But for just as long, we've noted how every time a journalist or analyst actually dissects that claim, they find it's completely unsupportable. What objective analysts do tend to find is that the telecom sector hires an army of economists, consultants, fauxcademics and lobbyists more than happy to manipulate, distort and twist the data until it supports whatever conclusion they're paid to parrot.

That net neutrality didn't harm sector investment isn't really debatable. Just ask industry executives from Frontier, Comcast, Cablevision, Sprint, AT&T, Sonic and even neutrality public enemy number one, Verizon all of who are on public record telling investors the "net neutrality killed sector investment" claim simply isn't true. That this concept is a canard is also supported by public SEC filings and earnings reports, as well as the billions being spent on spectrum as these companies rush toward the fifth generation (5G) wireless networks of tomorrow.

Most of the sector's dollar-per-holler economists just cherry picked specific windows of time to track CAPEX increases and declines, intentionally ignoring that many of these changes have nothing to do with net neutrality (for example, Charter's CAPEX dipped when it completed its deployment of digital cable converters) as well as numerous large scale fiber deployments (in areas with competition, at least). But no matter how many times this claim is debunked, it has remained the centerpiece of Ajit Pai's facts-optional assault on net neutrality protections.

That said, the claim that net neutrality harmed investment has, of course, once again popped up again this week as the agency tries to defend its extremely unpopular plan to gut the rules. In fact, it was part of a rather fact-optional fact sheet (pdf) provided by the FCC as it tried to convince consumers that giving a giant middle finger to consumers was a really nifty idea. Unfortunately for the FCC, reporters capable of basic fact checking are, again, pointing out that this claim is entirely untrue:

"Hampered by those rules, broadband companies are cutting back on investing in things like expanding their services to new customers or upgrading their networks, Pai, the FCC chairman, argues. If that's really what's been happening, that would be terrible, especially in a country that's ever more dependent on the internet and where the digital divide remains pronounced. But there's no evidence to prove Pai's assertion. In fact, the data Pai points to doesn't show anything close to a marked decrease in broadband investment. Instead, it shows that while broadband investment has risen and fallen a little bit over the years, it's been mostly flat since 2013.

The amusing part is, that when challenged to provide real, objective data proving that net neutrality was an investment apocalypse, the FCC engages in little more than a glorified shoulder shrug. Last week, when pressed to defend its claim, FCC spokespeople simply began directing reporters to long-ago debunked data from telco lobbying organizations like USTelecom, which is majority funded and operated by AT&T:

"During a conference call FCC officials held with reporters last week, I asked about this discrepancy between Pai's assertion that investment is declining and what the actual data shows. The officials dismissed my question, saying I had my facts wrong. But they didn't offer any data that would prove Pai's argument.

Reached later, an FCC representative pointed to the USTelecom data (posted above) that Pai previously referenced. The representative declined to make the chairman or anyone else on his staff available for an interview."

Again, if you're playing along at home, that's a government agency defending its frontal assault on popular consumer protections by telling reporters to go ask lobbyists. And when Ajit Pai's FCC is informed that this data isn't reliable and has been debunked, the agency's staffers will just give inquiring reporters a blank stare, and turn their focus toward news outlets more than happy to prop up this kind of blatant bullshit. The fact that few people even seen to find this strange or distasteful is a pretty solid indication of how far down the post-truth rabbit hole we've fallen. And if you're a reporter that continues to take this dated canard at face value, you're part of the problem.

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Posted on Techdirt - 28 November 2017 @ 12:08pm

Judge Backs AT&T, Comcast Nuisance Suit Against Google Fiber In Nashville

from the why-we-can't-have-nice-things dept

There's numerous methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.

Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.

So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed and insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) have supported the changes.

But because this would accelerate competitor broadband deployments as well, incumbent ISPs like AT&T, Comcast and Charter Spectrum did what they do best: they filed nuisance lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.

In Louisville this tactic didn't work so well, with a Judge ruling that the city was perfectly within its legal rights to manage the city's utility poles. ISPs had claimed that these cities' authority was over-ridden by FCC rules, though even the FCC itself backed Google Fiber and the cities in this fight (obviously this position, like most pro-competitive policies, were reversed when Trump appointed Ajit Pai to head the FCC last fall).

In Nashville however those same ISPs last week scored a major victory on the news that a Judge has backed incumbent ISP claims that the city did not have jurisdiction over utility poles -- and that the policy change violates contract law. Google Fiber, for its part, says it's reviewing the ruling:

"We're reviewing today's court ruling to understand its potential impact on our build in Nashville," a Google spokesperson said. "We have made significant progress with new innovative deployment techniques in some areas of the city, but access to poles remains an important issue where underground deployment is not a possibility."

There's several reasons Google Fiber announced last fall that it was pivoting toward wireless/fiber hybrid deployments. One was the high cost and slow pace of fiber deployment, but another was the kind of legal and regulatory roadblocks being erected by the likes of AT&T, Charter and Comcast, who are utterly terrified at the faintest specter of competition disrupting their all-too-cozy markets. Google Fiber has managed to avoid some of these obstacles via technologies like microtrenching, but the incumbent ISP goal of slowing the rise of competition has proven successful overall.

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Posted on Techdirt - 28 November 2017 @ 6:24am

Comcast Spent Millions Repealing Net Neutrality, Now Wants You To Believe It Won't Take Full, Brutal Advantage

from the one-born-every-minute dept

Despite the nation's biggest ISP and cable company having spent millions of dollars and lobbying man hours on repealing broadband privacy rules and soon net neutrality protections, executives at the least-liked company in America hope you're dumb enough to believe they won't be taking full advantage.

Comcast has spent months now falsely claiming that it will still adhere to "net neutrality" once the FCC's rules are gutted by Ajit Pai. But the company's pet definition of net neutrality is so narrow as to be effectively meaningless. For example, last week as the FCC was trying to hide its obvious handout to telecom duopolies behind the cranberry and stuffing, Comcast issued a tweet again insisting that you can trust them to be on their best behavior despite the fact there will soon be no meaningful rules holding their feet to the fire:

Comcast would have you ignore the fact that net neutrality violations are just a symptom of a lack of competition in the broadband market. They'd also like you to ignore that there's a myriad of ways that ISPs like Comcast have taken advantage of this lack of competition to engage in even worse anti-competitive behavior, with "throttling" and "blocking" just being a small subsection. For example, a lack of competition lets Comcast impose arbitrary and unnecessary usage caps and overage fees, then exempt its own content from those caps while penalizing direct competitors like Netflix.

Comcast also hopes you've forgotten this debate began, in part, when Comcast decided to throttle the upstream traffic of all BitTorrent users on the Comcast network without telling anybody, then lied about it repeatedly. Similarly, Comcast hopes you don't realize that as people grew wise to ham-fisted throttling and blocking, ISPs began abusing net neutrality in other, more "creative" ways -- like intentionally letting peering points congest in order to drive up costs for transit and content operators who foolishly wanted their traffic to reach consumers unimpeded (aka "double dipping," or less generously: extortion).

There's a reason Comcast and other large ISPs are happily promising not to throttle or outright "block" websites: large ISPs now know it's hard to get away with either now that the public and press are more savvy to what they've been up to. They know that blatantly throttling or blocking a website completely would generate a tidal wave of negative PR.

That's why they've long-since moved on to more creative technical abuses of limited competition they can hide behind half-baked techno-babble and semantics, whether that's usage caps and zero rating, charging you more money for privacy, or strangling innovation via their lucrative cable box hardware monopoly.

Anybody that honestly believes that uncompetitive duopolies won't take full, brutal advantage of limited competition and incompetent/corrupt regulators is ignoring history and fooling themselves. Fortunately, most people seem to understand that when it comes to not abusing a lack of competition, large, incumbent telecom providers are the very last companies in America you should trust:

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