Pai squeezed in jab at efforts to restore net neutrality

CYBERSLEUTH

On his last full day at work before the Federal Communications Commission closed its operations due to the longest government shutdown in U.S. history, FCC Chairman Ajit Pai squeezed in one last jab at efforts to restore federal network neutrality rules. On Jan. 2, Pai issued a statement celebrating the fact that Congress had failed to restore network neutrality rules through a mechanism called the Congressional Review Act. 5 U.S.C. Section 802.

Under the CRA, Congress can override an agency decision if it issues a joint resolution of disapproval by a simple majority in both houses. The U.S. Senate initiated the process by passing a discharge petition on May 16, 2018. A discharge petition was then introduced in the U.S. House, which had to approve it before the end of 2018. The House fell 38 signatures short of the majority required to force a vote on the petition and Congress went home for the holidays.

Pai's celebratory New Year's message thanked the U.S. House for declining to reinstate "heavy-handed Internet regulation" and touted the supposed benefits that have occurred after the FCC gutted the prior net neutrality rules, which prohibited internet service providers from discriminating in its transmission of content based on user identity or content provider. Declaratory Ruling, Report and Order and Order, FCC 17-166, at ¶195 and fn. 730 (released Jan. 4, 2018). But a close look reveals that Pai's self-proclaimed benefits of repealing network neutrality are misleading or dubious.

Pai pointed to a report from Ookla, an international provider of fixed broadband and mobile network testing applications, which he said shows download speeds increased 35 percent in 2018. The Ookla report actually concluded that the mean download speeds in the U.S. increased. The mean (or average) is calculated by adding all numbers in a data set and dividing the sum by the amount of numbers in the set. Meaning that while the average download speed may have increased in 2018, according to Ookla, speeds "varied widely" depending on location and ISP.

The average download speed doesn't provide any insight into whether some downloads were throttled or otherwise degraded, and there's evidence throttling is "rampant." A study released last year by David Choffnes assistant professor of computer and information science at Northeastern University, concluded almost every mobile ISP throttled service for certain content providers in 2018.

Pai failed to mention that the Ookla report was based on data from the second and third quarter of 2018. The FCC's repeal of network neutrality rules did not take effect until the end of the second quarter, on June 11, 2108, so any increase in download speeds in the Ookla report are not likely due to the repeal of network neutrality rules. Moreover, average download speeds don't indicate whether ISPs were treating all content from all providers equally.

Pai also pointed to a recent report by the Fiber Broadband Association finding that fiber "was made available to more new homes in 2018 than in any previous year" and concluded that "the FCC's light-touch approach is working." Similar to the Ookla report, however, Pai's comments are misleading. While the FBA report indicated that the number of homes passed by fiber increased by 17 percent in 2018, only one-third of homes passed by fiber are actually connected. Interestingly, the FBA report notes that fiber deployment increased by 19 percent in Canada, a country that regulates ISPs as utilities and where the national regulatory body, the Canadian Radio-television and Telecommunications Commission, issued rules in 2017 requiring that ISPs must treat data traffic equally in order "to foster consumer choice, innovation and the free exchange of ideas."

Increases in fiber may be attributable, in part, to the FCC, but not its repeal of network neutrality rules. Rather, increases in fiber deployment are likely due to availability of federal funds for broadband deployment in rural areas (which remain the least likely to have fiber due to lower population density). The FCC administers funds for fiber deployment through the Connect America Fund. But many other factors including state funding of broadband deployment are pushing increased fiber availability and general competitive forces account for fiber growth. It is notable that despite increases in fiber deployment, Verizon and AT&T (two of the most vocal critics of network neutrality rules) revised estimates of capital expenditures to be level or below their initial estimates for 2018. By focusing on the availability of fiber, though, Pai avoids the issue of whether Internet traffic is being routed on a non-discriminatory basis after the repeal of network neutrality rules.

At least Pai didn't repeat his earlier claims that the FCC repeal of network neutrality rules would boost jobs. In a separate statement issued with the Restoring Internet Freedom order, Pai claimed that network neutrality rules had stifled investment in telecommunications networks, which meant "fewer jobs." Repealing the network neutrality rules would change all of that, Pai said. It would stimulate the "massive infrastructure investment that we need" which would create jobs. But in the first Year-Without-network neutrality, AT&T cut 10,800 jobs, according to a report from the Communications Workers of America issued earlier this month. And the trend continues. Last week, several press outlets reported that AT&T is planning to lay off 7,000 more workers in the coming months.

Pai promised that in 2019 the FCC will "continue to pursue our forward-looking agenda to bring digital opportunity to all Americans." Let's hope the FCC does a better job of analyzing cause and effect with its new agenda.