Chairman Grinch delivers princely gift to ISPs

CYBERSLEUTH

Ajit Pai, chairman of the Federal Communications Commission, may come to be known as Chairman "the Grinch" Pai for leading the charge this month to reverse the FCC's network neutrality rules. There are now no specific rules that prevent internet service providers from blocking or degrading internet traffic, and that is likely to be a huge gift to the few companies that control the flow of traffic on the internet.

The FCC replaced net neutrality rules, which prevented ISPs from blocking, throttling or charging a toll for preferential treatment, with a requirement to be "transparent" by disclosing business practices that could affect traffic on the internet. Imagine how helpful a disclosure (undoubtedly pages long, in the smallest possible font size, and written in the most uncommunicative legalese possible) will be to consumers who are having problems downloading content or watching garbled video. Pai assured consumers they will be fully protected by these transparency rules. The reality is that arming consumers with knowledge that their communications are being manipulated is useless if they can't do anything about it.

Let's assume that a customer suspects his or her ISP is blocking or throttling content and wants to file a complaint. How will that person be able to document the problem? There are a number of free services that allow consumers to test the speed of the broadband connection over which the internet is reached. But there isn't an equivalent tool that would enable a consumer to determine why the connection is slow. No tool will enable a consumer to uncover an ISP's internal engineering practices creating the service degradation.

For example, traffic may be slowed or sped up for services provided over fiber optics by changing the quality of service settings in the electronics that control transmissions. Or traffic throughput could be manipulated by routing traffic originating from a particular IP addresses (perhaps a website that has been critical of an ISP's practices) onto facilities experiencing high congestion, thereby slowing the transmission or possibly causing service degradation. How would a consumer uncover this?

Although the internet is commonly thought of as a single amorphous network, in reality it is a collection of private interconnected networks. And the physical facilities that carry internet protocol traffic from ISPs, are often owned by affiliates -- think AT&T Internet f/k/a AT&T U-verse, Verizon FiOS, Frontier. Those network backbone affiliates have an incentive and ability to help an affiliated ISP. Will the FCC rules preclude that underlying carrier from "adjusting" its quality of service or other engineering parameters for certain types of traffic originating from its corporate affiliate? Doubtful.

While the underlying network providers are typically regulated as telecommunications carriers, if they are simply doing what their ISP customer asks (enacting network controls to prioritize or "manage" certain traffic) it isn't clear the network provider has violated a rule that the FCC could enforce (even if it wanted to). If the practice is discovered, the network provider will likely claim it was simply making routing or engineering changes for network management reasons, not to aid the ISP affiliate in manipulating traffic. The FCC has been extremely deferential to telecommunications providers on the issue of network management even before the current zealous deregulators joined the FCC.

Pai touts the enforcement authority of the Federal Trade Commission as the answer to the lack of FCC oversight for ISPs. But in reality the FTC isn't likely to be effective. Even if consumers become amateur network engineers, collect and submit evidence of blocking or throttling in a complaint, the FTC's statutory mandate is limited to preventing unfair and deceptive trade practices that cause substantial consumer harm. 15 U.S.C. Section 45 et seq. If an ISP discloses to its customer that it may block or throttle internet traffic, there is no deception and it's unlikely the FTC has authority to do anything about it.

In the end, consumers are left to vote with their feet if an ISP is engaging in unacceptable blocking or throttling of content. The problem, of course, is most places in the United States have only two choices for ISPs -- the incumbent telephone provider and a cable company. If both ISPs decide to manipulate traffic, there are no effective actions the consumer can take. Further, long-term contracts make it difficult for the consumer to switch even if there were a viable alternative provider.

The only thing everyone seems to agree about is that the internet has become an essential communications tool for social movements, political discourse and commerce. Why, then, does the head of the expert agency for all things communications believe there should be no oversight or even a set of best practices? The FCC eliminated the voluntary code of conduct for ISPs.

Imagine if the telecommunications carriers providing traditional voice services had decided they wanted to block certain types of phone calls or route traffic to disadvantage certain types of speech. There would have been a huge outcry. Indeed, telecommunications carriers are legally required to deliver traffic on their networks and are barred from blocking or misdirecting calls even if the carriers believe they are not being paid correctly to handle the traffic. Establishing Just and Reasonable Rates for Local Exchange Carriers; Call Blocking by Carriers, WC Docket No. 07-135, 22 FCC Rcd 11629, 11631 paras. 1, 6 (WCB 2007) (2007 Call Blocking Declaratory Ruling). It makes no sense to have less protection for internet traffic.