Will the FCC finally win the network neutrality ping pong match?

The two scariest things a politician can do is keep talking near a microphone thought to be switched off and to predict the future. Former FCC Chairman Ajit Pai likely regrets having done the latter. In 2018, Pai chided experts and consumer groups who were critical of his effort to abolish network neutrality rules. He assured the public that rules preventing carriers from manipulating the throughput of internet traffic to benefit preferred content weren't necessary because, "if an ISP starts throttling of services based on the nature of the content, everyone will know."

Turns out Pai was right. David Choffnes, associate professor of computer and information science at Northeastern University, has compiled data for the last six years showing that every wireless carrier has been throttling service on both their cellular and wifi networks for certain content providers. Choffnes and students at Northwestern developed an application called Wehe that, when downloaded to a consumer's mobile phone, can detect "differentiation" in bandwidth allocated to specific content providers.

Wehe detected throttling by MetroPCS (owned by T-Mobile) at the highest rates and most consistent throttling. According to the data, MetroPCS throttled content from NBC Sports a whopping 86% of the time, Netflix 85% of the time, Amazon 79% and YouTube 78% of the time. Carriers that offer both wifi and cellular service were far more likely to throttle content on cellular than wifi. AT&T lead the pack by throttling content from YouTube 72% of the time, Netflix 70% and Facebook 35% of the time on its cellular network, but slightly less on its wifi network: YouTube content was throttled 45%, Netflix content was throttled 43% and Facebook was throttled 41% of the time.

Wehe detected T-Mobile throttling content at rates of 63% for YouTube, 61% for NBC Sports, 46% for Netflix, but only 10% for Facebook. Throttling on T-Mobile's wifi network ranged between 52% for YouTube to 23% for Facebook. Wehe detected Verizon throttling on its cell network at rates of 71% for NBC Sports, 66% for Hulu, 65% for YouTube and 45% for Netflix. Throttling was detected on Verizon's wifi network for only two content providers, Netflix 34% of the time and Hulu 32% of the time. Interestingly, non-traditional cellular reseller GoogleFi had low rates of throttling. Wehe detected throttling at 28% for Hulu and 20% for YouTube (owned by Google). Throttling data for all carriers can be found at https://wehe.meddle.mobi/globalStats.html.

While there are legitimate reasons for carriers to restrict bandwidth during periods of extremely high traffic in order to manage their networks, there seems to be no legitimate reason to throttle 24 hours per day and to restrict bandwidth only for certain providers, especially when those providers compete with affiliates of the carrier.

Now that the FCC and the rest of us know wireless ISPs are throttling data, you'd think the agency would have worked quickly to reinstate network neutrality rules. Instead, the FCC has been mired in years of political wrangling that stymied any progress. Earlier this month, though, the FCC voted 3-2 (along party lines) to approve issuing a proposal to re-establish network neutrality rules both for wired and wireless broadband.

Network Neutrality has a convoluted history. Initially, broadband was classified as a Title II service subject to the FCC's authority to regulate. Under Pai's tenure, the agency issued the "Restoring Internet Freedom Order," which reclassified broadband as a Title I service over which the FCC has virtually no regulatory authority.

But just eliminating federal network neutrality rules wasn't enough. Pai's FCC included a broad preemption provision that barred states from enacting their own regulations with radical provisions such as requiring that all rates and practices be just and reasonable, and barring unjust or unreasonable discrimination; tariffing requirements; accounting requirements; entry and exit restrictions; interconnection obligations; and unbundling or network-access requirements. Declaratory Ruling, Report and Order and Order, FCC 17-166, at ¶195 and fn. 730 (released Jan. 4, 2018). The FCC's Order was challenged, and the United States Court of Appeals for the District of Columbia Circuit upheld the FCC's reclassification, but sensibly held that if the FCC lacks jurisdiction to regulate broadband, it also lacks the authority to preempt states from doing so. Mozilla Corp. v. FCC, 940 F.3d 1 (Oct. 2019).

To move forward with reinstating network neutrality rules, the FCC must first get past its own hurdle and reclassify broadband as a Title II service. If the FCC can find the political will to once again pass network neutrality rules, it would provide a uniform national standard for internet traffic. Currently, a number of states, including California, Oregon and Washington, have enacted their own network neutrality laws. While the California Net Neutrality law was widely viewed as the toughest law legislation in the country, complaints must be brought by the California Attorney General's office and thus far enforcement has been close to zero.

Public comments on the FCC's network neutrality proposal are due on Dec. 14, 2023 and there are likely to be hundreds, if not thousands, of responses. Now that carrier throttling is hiding in plain sight, and everyone understands the importance of broadband for remote work, education and healthcare, perhaps the FCC will finally issue regulations to ensure that all content providers have an equal chance.