For Americans who rely on an open Internet to work, learn, create and speak, today marks a grim anniversary. On December 14, 2017, Federal Communications Commission Chairman Ajit Pai and his two Republican colleagues voted to eliminate the strong and popular 2015 net neutrality rules, which prohibited broadband Internet access providers like Comcast, AT&T and Verizon from blocking, throttling or otherwise favoring or disfavoring certain Internet traffic. At the same time, the Commission abdicated its role protecting consumers and competition in the broadband market, professing to give that role to the Federal Trade Commission, which has less robust legal and regulatory tools.
Pai would have you believe that the net neutrality repeal was of no consequence — the Internet wasn’t destroyed, cute pictures of cats and dogs are still in abundance, Google and Netflix are alive and well. But even in the short 6 months since the December 14 repeal of the net neutrality rules became effective, we have seen how consumers and competitors lose when broadband providers are given license to self-regulate and the FCC discards its responsibility to oversee the market.
The most shocking example of how the net neutrality repeal has left Americans unprotected took place this summer, during the Mendocino Complex fire, which at the time was the biggest in California history. For 8 months, the Santa Clara County Fire Department begged Verizon to stop throttling its broadband service, which it needed to coordinate emergency response the fire. Verizon agreed to stop throttling the Fire Department’s broadband service after the department agreed to pay more than double of what it had been paying previously.
While Verizon’s actions may not have risen to a violation of the 2015 rules’ prohibition against throttling, the incident pointed out an even bigger problem — since the FCC abandoned its oversight over broadband providers, the Fire Department had nowhere to go to complain about what Verizon was doing. Lacking recourse, the Fire Department was forced to beg Verizon to cease its throttling and eventually to bend to its demands to pay much more. It is telling that once this incident made national headlines, neither the FCC nor the FTC said anything. Neither agency claimed that if only the Fire Department had come to it, the problem would have been resolved earlier.
Earlier this year, a professor of computer and information science at Northeastern developed an app which revealed that nearly every major mobile wireless broadband provider had been throttling video services like YouTube and Netflix even at times when their networks were not congested. Verizon, the largest mobile wireless carrier, was the biggest offender, with over 11,000 instances of throttling between January and May of this year. AT&T, the second largest carrier, came in second with almost 8,400 instances of throttling. Why are the companies doing this? The most logical answer is to drive customers to higher, more expensive tiers of service. Of course, in the case of AT&T, it has the extra added benefit of slowing down video competitors to its own DirecTV and Time Warner content.
What can consumers do about it? Not a lot. The FCC has washed its hands of handling complaints about throttling and price gouging. And the FTC can do little so long as a company tells its customers that it may throttle their broadband service, even for so-called “unlimited” tiers. YouTube, Netflix or a smaller video streaming service might complain that what the carriers are doing is anticompetitive, but it would take years for the FTC to bring a case (which it rarely if ever does) and for a court to decide the merits. The FCC’s 2015 rules, which made it much more unlikely that companies would engage in this kind of behavior in the first place, had expedited procedures for dealing with incidents like these, which was critically important for consumers and smaller innovators, neither of whom have the resources for a long-drawn out process.
As long as broadband Internet access service providers like Verizon, AT&T and their cable brethren operate with little or no oversight, they’ll not only be able to throttle and discriminate against certain Internet traffic, but they can also charge new and unexplained fees, raise their prices virtually at will and treat their customers as they see fit. These actions are likely to only get worse as household bandwidth consumption continues to rise thanks to the popularity of video streaming. In a properly functioning market, robust competition could serve to moderate this kind of behavior, but as the majority of Americans know, their choice of broadband providers are usually limited to 2 if they are lucky.
The one year anniversary of the repeal of the FCC’s 2015 net neutrality rules is not one to celebrate. It’s now up to the courts, the states or Congress to reinstate the rules and the FCC’s legal authority to protect consumers and competition. Otherwise, we’ll see more consumers, public safety officials and innovators with no place to go when their broadband provider answers to no one.
