As ruling looms, FCC should act fast on net neutrality

When former Federal Communications Commission Chairman Ajit Pai left the agency, there was hope that government regulators might throttle the "throttlers" -- carriers who restrict broadband speeds to disadvantage certain content or access to competitors' websites. During his tenure, Pai chided supporters of network neutrality rules, which he characterized as anti-consumer and nanny-state regulation. Pai assured the public that "if an ISP starts throttling of services based on the nature of the content, everyone will know."

Turns out he is right. David Choffnes, assistant professor of computer and information science at Northeastern University, verified that almost every cellular carrier is throttling service for certain content providers. Professor Choffnes' initial conclusions were based on research in 2018 just after the FCC gutted the network neutrality rules. More than three years and a presidential administration have passed, but throttling violations continue.

Choffnes and students at Northeastern University developed an application called Wehe that, when downloaded to a consumer's mobile phone, can detect "differentiation" in bandwidth allocated to specific content providers. Significant variations in bandwidth to applications is a sign of throttling, which affects service quality, particularly for bandwidth intensive applications such as streaming video.

According to Choffnes' 2018 research, the two largest wireless internet service providers, AT&T Wireless and Verizon Wireless, throttled data speeds the most frequently. His research showed that Verizon Wireless throttled data speeds to Netflix, YouTube and Amazon during the six-month test period and that AT&T Wireless throttled data speeds to Netflix, YouTube and NBC Sports.

Now, based on more than three years of data, Choffnes' research shows that throttling violations are still problem, but the targets have changed. Choffnes now has data from over 2.3 million tests conducted between December 11, 2017, and January 15, 2022. Verizon Wireless has throttled speeds to NBC Sports 72% of the time. Verizon Wireless' next most common targets for throttling are Twitch (throttled 70% of the time), Hulu (68%), Disney+ (66%) and YouTube (65%). Interestingly, throttling for Netflix went down substantially from 2018 to 45%.

AT&T Wireless' top throttling target was YouTube (72% of the time), followed by Amazon, Netflix and NBC Sports, all throttled 70% of the time. Choffnes' data show that AT&T throttled Disney+ 52% of the time, followed by Twitch (36%) and Hulu (32%).

Rounding out the big three cellular carriers, Choffnes' data shows that T-Mobile also throttled YouTube the most (63% of the time), followed by NBC Sports (61%) and Netflix (46%). Hulu was reportedly throttled 44% of the time, Vimeo (43%) and Amazon (35%). The results for all carriers is available at https://wehe.meddle.mobi/USStats.html.

T-Mobile's technique differs markedly from the other two major carriers, which appear to throttle data across the entire length of a video stream according to Choffnes. T-Mobile reportedly instead uses "delayed throttling" in which it allows full video speeds (typically 25 Mbps) for the first few seconds of a video stream and then drastically reduces video speed to 1.5 Mbps for the duration of the video. Choffnes' indicates that the delayed throttling begins once a certain number of data bytes have been transmitted.

While there are legitimate reasons for carriers to restrict bandwidth during periods of extremely high traffic in order to manage their networks, Choffnes reports that data throttling is not occurring only during periods of congestion.

Data like Choffnes' may spur the Biden administration to reimpose net neutrality rules. In July 2021, President Joe Biden issued an executive order on Promoting Competition in the American Economy in which he urged the FCC to restore net neutrality rules. Under prior FCC chairmen, the FCC regulated broadband under Title II of its regulatory authority over telecommunications carriers. Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in "Protecting and Promoting the Open Internet," 80 Fed. Reg. 19738 (Apr. 13, 2015). President Biden's pick for FCC chairwoman, Jessica Rosenworcel, has been a vocal advocate for net neutrality.

The FCC may decide to act not only at the urging of President Biden, but also to head off state net neutrality regulations. California previously passed its own set of net neutrality rules when the FCC revoked the federal net neutrality rules in 2018. California's Net Neutrality Act was widely viewed as the toughest net neutrality legislation in the country, and would have barred a wide range of techniques to block, impair or degrade data speeds, including the type of throttling found by Professor Choffnes, from or to a fixed endpoint or a mobile broadband station in California. Civil Code Section 3101(a) (1)-(9).

California's Net Neutrality Act didn't get far, however, because almost immediately former President Donald Trump's Department of Justice and a coalition of broadband-industry lobby groups representing wired and mobile internet providers (the American Cable Association, CTIA-The Wireless Association, NCTA-The Internet & Television Association, and US Telecom) sued to stop California from enforcing the law. American Cable Association v. Becerra, 2:18-cv-02684, (E.D. CA 2018). The lawsuit was based on a broad preemption provision in the FCC order revoking net neutrality rules that barred states from enacting their own regulations. Declaratory Ruling, Report and Order and Order, FCC 17-166, at ¶195 and n.730 (released Jan. 4, 2018).

The U.S. Court of Appeals for the D.C. Circuit eventually rejected the FCC's preemption provision. Mozilla Corp. v. FCC et al., 18-1051 (Oct. 1, 2019). Shortly thereafter, the DOJ voluntarily dismissed its complaint. The industry group continues with its lawsuit, but it recently lost a motion for a preliminary injunction to prevent California's from enforcing its net neutrality law. The industry group has appealed the denial. 21-15430 (9th Cir. 2021). The appeal has been fully briefed and is awaiting a decision.

So, the FCC should act fast. 