InsideSources

Government regulators and the telecom industry agree that broadband maps showing who has internet access and who has high-speed internet are inaccurate. Members of Congress complain that the maps are “bogus.” Even the Federal Communications Commission admits they’re deeply flawed, which is why Chairman Ajit Pai said the commission will vote to change them in August.

Telecom lobbying group US Telecom launched its own broadband map initiative in March, and Senators Amy Klobuchar (D-Minn.), Gary Peters (D-Mich.) and John Thune (R-S.D.) just introduced the Broadband Deployment Accuracy and Technological Availability (Broadband DATA) Act, to speed the development of a new national broadband map.

But the FCC also just rolled out another round of funding to provide broadband to underserved rural areas totaling more than $166 million, based on the old, inaccurate broadband maps.

A team of researchers in Pennsylvania doesn’t understand why the FCC and telecom companies won’t just use their new nationwide broadband map, which they say is a far more accurate than anyone else’s, so that taxpayer dollars are used effectively.

Throughout the Obama and Trump administrations, the FCC has thrown billions of dollars at telecommunications companies to incentivize them to provide internet service to rural areas. (Rural areas are higher-cost than urban areas because of lower population density and difficult typography.) According to the FCC, this has helped to narrow the digital divide.

But according to the Pennsylvania team’s research, led by Penn State’s Palmer Chair of Telecommunications Sascha Meinrath, the FCC exaggerates the number of people who don’t have access to high-speed internet.

In their report released June 3, the team describes how they measured broadband speeds in every Pennsylvania county and created a methodology that could be used in any state. By partnering with other researchers in other states, they successfully created a nationwide broadband map.

“Over 800,000 Pennsylvania residents do not have access to broadband connectivity, according to the FCC,” the team says in the report. “However, recent research has documented that these official estimates are downplaying the true state of the digital divide because they rely on self-reported data by Internet Service Providers (ISPs).

According to the report, the research team collected “more than 11 million speed tests from across Pennsylvania in 2018 and found that median speeds across most areas of the state did not meet the FCC’s criteria to qualify as a broadband connection. At the county level, the 2018 data showed that there were 0 (zero) counties in Pennsylvania where at least 50 percent of the populace received ‘broadband’ connectivity, as defined by the FCC.”

In other words, the FCC has wasted billions through the Universal Service Fund (USF) and Connect America Fund trying to address rural broadband without actually knowing who needs service.

Meinrath told InsideSources that the team delivered packages to each Pennsylvania representative and senator in the commonwealth’s House and Senate with maps and data on their individual districts’ broadband connectivity.

“This is one of those great areas where Republicans and Democrats agree,” Meinrath said. “Many say this is the top issue they hear from the constituency, at the state level. I think there’s real opportunity for meaningful intervention.”

Meinrath also said one reason why the FCC won’t pay attention to his team’s map is because no one wants to admit fault for the old, bad maps. He’s met with the FCC many times over the last decade to discuss rural broadband issues.

“These maps have become increasingly hyperbolic, especially for rural America,” Meinrath said. “For rural America, our broadband maps are becoming less accurate. Because of that, there’s a reluctance to hit the reset button because it will show a tremendous regression in broadband availability across the United States, and no one wants to be part of that. They’d much rather increase hyperbole than accuracy.”

To Meinrath, it’s “fascinating” that federal lawmakers and regulators and national media gab about trying to improve broadband maps when Meinrath’s team already made one — with an accompanying 100-page report explaining the findings.

“We don’t have to talk about a future endeavor about maps,” he said. “We can be further supporting this kind of work. There’s no reason not to build on this momentum and these platforms. They’re already live. I would welcome the opportunity to talk more with the FCC. If someone’s willing to take this seriously and move the ball forward, I’m in.”

Meanwhile at the state level, governors and local lawmakers want to use Meinrath’s team’s findings to address the digital divide themselves.

“We know that topography, infrastructure access, population density and even consumer ability to pay all contribute to the current situation,” Pennsylvania State Sen. Gene Yaw (R) said at a June 3 press conference for Meinrath’s map and report. “However, the Penn State-led team of researchers identified examples where unique partnerships, cooperative initiatives, and support from federal, state and local governments, private businesses, and nonprofits are working to bring universal, high-quality broadband to all Pennsylvanians.”

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Maine just passed a new privacy law, but it only applies to internet service providers (ISPs), not the content platforms themselves. Now privacy advocates worry it’s not enough to protect consumers.

“The problem is that the proposed law does not even cover the major internet entities where users spend 99 percent of their time online — namely Google, Facebook, Amazon, Apple, Microsoft, Netflix, or even the Chinese giants Tencent, Alibaba, and Baidu,” American Enterprise Institute (AEI) visiting tech scholar Roslyn Layton wrote for Forbes. “Instead it applies only to internet services providers (ISPs), which represent a small fraction of internet activity.”

The new privacy law requires ISPs to obtain customers’ explicit consent before they repurpose, share or sell customers’ personal data. The language of the law echoes the Obama administration’s Federal Communications Commission’s 2016 ISP privacy rules, which Congress repealed in March 2017.

The most common criticism of the 2016 FCC rules was that they didn’t differentiate between an ISP using sensitive vs. non-sensitive information. The Maine law does make this distinction, specifically banning ISPs from repurposing, sharing or selling sensitive data that can be used to personally identify a customer.

Layton said the law doesn’t make sense because the companies with unfettered access to sensitive data are the edge providers like Google, she argues, not the ISPs.

“Data brokers, online advertisers, health and financial companies — all of them would get a free pass under this proposed legislation for no policy reason anyone can discern,” she wrote.

Natasha Duarte, a policy analyst for the Center for Democracy & Technology (CDT), told InsideSources it is right to question why Maine didn’t include edge providers and other tech companies in this privacy law, but some privacy protections are better than none at all.

“Ideally everyone would have consistent privacy protections,” she said. “It doesn’t necessarily matter who has the information, people want to be protected. CDT certainly supports a federal privacy law that covers both ISPs and all other companies that collect personal information, online and offline.”

The Maine law itself, she said, is “pretty straightforward” and important because so many consumers don’t get to choose an ISP due to a concentrated broadband market. With edge providers and apps, there’s more choice.

“In some cases we may be able to make a choice about what apps we use and what email providers we use, but I don’t want to overstate how much those are our choice and often we don’t have privacy choices among those edge providers, but there are at least some options,” she said. “With ISPs, a lot of people have only one or two high-speed broadband providers in their area. They get access to a lot of very sensitive info, the websites we go to, our location, things like what we can be looking at which can reveal health information and sexual orientation. So it’s very sensitive information that needs to be protected.”

Internet access is also paramount for success in today’s economy, which puts consumers in a tricky position because ISPs require them to share personal data in order to receive internet access.

“We also cannot choose not to have them collect this information in the first place because in order to facilitate access to the internet they have to have access to certain info like our usage, our location, what services we’re using,” Duarte explained. “We also have limited options in terms of obscuring or limiting what info they collect about us. Customers don’t have any real bargaining power to change the terms of the contract but have to pay every month of they like the privacy practices of their ISP or not.”

But because edge providers are some of the prime offenders when it comes to sharing and selling consumers’ personal data, a law targeting ISPs may not really help consumers.

“Maine consumers certainly would be surprised to learn that it does nothing to protect them from search companies selling their browsing history, dating services allowing advertisers to target them based on their relationship history, or smart TVs listening to their conversations,” she wrote. “And they would be especially skeptical of legislative promises to take the issue up and fix the rest of the privacy problem sometime down the road.”

According to a press release from Maine Gov. Janet Mills, the law will take effect on July 1, 2020.

“I think the main takeaway is, asking people for permission before you repurpose and share their data is the bare minimum that people deserve from ISPs that they rely on and pay every month,” Duarte said. “We would like to see more restrictions on how data is used when it’s collected,  but this is a good step forward in terms of protecting people.”

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Democrats’ Save the Internet Act, which would restore former net neutrality rules, passed the House Subcommittee on Communications and Technology yesterday, which means the bill will now head to a full Energy and Commerce Committee markup and vote before heading to the House floor.

The bill restores the Federal Communications Commission’s (FCC) 2015 Open Internet Order, which uses Title II of the 1934 Communications Act (originally written to regulate the old telephone monopoly) to regulate internet service providers (ISPs), like AT&T, Comcast and Verizon.

Republicans are vehemently against Title II-based net neutrality regulation, calling it too “heavy-handed” and preemptive. Republicans introduced several net neutrality bills prohibiting blocking, throttling and paid prioritization, but Democrats and pro-net neutrality advocates say they aren’t enough to protect a free and open internet because they don’t address all the ways ISPs can abuse consumers.

From the perspective of R Street’s Technology and Innovation Fellow Joe Kane, the “major weakness” of the Save the Internet Act is that it doesn’t really end the net neutrality debate.

“The big virtue of legislation is that it would end the fight, you don’t have to worry abut what the next administration would do,” he told InsideSources. “This bill just kicks it back to the FCC.”

Republicans tried to add several amendments to the bill during yesterday’s markup, but none made it into the final draft. One included a sunset clause, which would nix the net neutrality rules after five years and require the FCC to make a recommendation regarding whether the rules should be permanent.

Of course, Republicans expect the Trump administration’s FCC to recommend nixing the rules permanently, so the move was largely political showboating.

The second proposed amendment deleted the part of the bill that restores the 2015 Open Internet Order and replaces it with a prohibition of blocking, throttling and paid prioritization practices, sets up a formal complaint process so that consumers can report such abuses to the FCC, and classifies the internet as an “information service” to be regulated by the Federal Trade Commission (FTC), not the FCC, except for any blocking, throttling or paid prioritization abuses.

The third requires ISPs to “publicly disclose accurate information regarding the network management practices, performance characteristics, and commercial terms of its broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services,” and to make such information easily accessible. The amendment also prohibits blocking, throttling and paid prioritization.

The fourth does the same, but also prevents the FCC from using Title II to crack down on other ISP practices, like zero rating. Zero rating is the term used to describe when a telecom company — like T-Mobile — offers exceptions to a monthly data cap. For example, T-Mobile might not count a customer’s music and video streaming toward his or her monthly data cap. This can be a way for telcos to one-up their competitors with certain deals.

Zero rating can be used against consumers because it 1) it is a form of paid prioritization that many scholars fear is a slippery slope into censorship and 2) it allows landed ISPs to discount their own services to the disadvantage of new entries to the market (i.e., it discourages competition and the free market).

The fifth Republican amendment to the Save the Internet Act prohibits the federal government from setting broadband rates, which Republicans fear Title II-based net neutrality rules would do. Net neutrality advocates, on the other hand, see Title II provisions as a way for government to stop ISPs from charging too-high prices for broadband access.

The debate over Title II-based net neutrality rules boils down to two camps: those who want a comprehensive, Title II-based net neutrality law that addresses real and potential ISP abuses, and those who think a Title II-based net neutrality law would be too preemptive and discourage competition and innovation.

Based on how the last net neutrality hearing went, it seems both camps continue to dig in their heels. At this point, Kane thinks some kind of compromise is “pretty unlikely.”

“The current House bill may pass the House but I don’t think it has a chance in the Senate,” he said. “Democrats know this is good messaging for them. Nobody likes their ISP, so they can say, we’ll protect you from the bad ISP.”

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In the months following the Federal Communications Commission’s (FCC) 2017 decision to reclassify broadband under the regulations that governed the internet up until 2015, Democrats in states across the country have been retaliating by either taking executive action or drafting legislation to maintain the FCC’s 2015 common carrier regulation of Internet Service Providers (ISPs). Nebraska, New Mexico, California, New York, Rhode Island, Washington, and more are following what appears to be a national movement that’s attempting to reverse the FCC’s rollback of the strong net neutrality regulations.

States like Montana and New York have already issued executive actions that indirectly regulate broadband companies and ISPs by using the states’ respective monetary power to negotiate broadband services to providers that uphold the net neutrality principles outlined in the FCC’s 2015 ruling. But while states try to flex their power under the mantra of local control, the question remains how much authority lies on the side of states when dissenting from a federal regulatory agency.

In Iowa, a House bill aimed at giving Iowa the authority to regulate broadband companies and ISPs under the FCC’s 2015 regulations was introduced this week. The “Iowa Internet Net Neutrality Act” (IINNA), sponsored by  Rep. Liz Bennet (D-District 65) would mandate that broadband companies and ISPs not participate in paid prioritization practices, block lawful content, impair internet traffic, and make available to the public their practices when handling different forms of online content. The bill is unlikely to receive much support in Iowa’s Republican-controlled legislature and governor’s office. And even if it did, it’s legality is highly questionable and it would fall upon the courts to decide.

According to Graham Owens, legal fellow with the think tank TechFreedom, all of these movements, whether through executive actions, or possibly through state law, will have a tough time being implemented and upheld in an eventual court case.

Visiting scholar at the American Enterprise Institute Roslyn Layton concurs with Owens’ take, expressing that the bill and others like it across the country “would violate the Constitution, the Communications Act, and the FCC’s preemption authority.”

Owens said that due to the FCC’s recent reclassification of the internet as a Title I entity, the agency has the power to preempt such legislation and action. Preemption is a principle that allows Congress or other federal agencies to stop states from enacting laws that both Congress and federal agencies have the authority to rule on.

“Essentially, it takes away the states’ ability at all to regulate [the internet],” Owens said. “Any sort of regulation that applies to broadband is going to have a difficult time surviving preemption.”

Owens said this is predominantly because of the Title I designation, which according to Congress and the courts in the implementation of the Telecommunications Act, states once an entity is classified as an information service, under Title I, the states have no authority to regulate it, citing Minnesota Public Utilities Commission v. FCC.

Should such legislation survive through a legislature and become a law, the FCC can preempt the state and stop the law. However, Graham said that an ISP or broadband company would need to challenge a state’s law citing the FCC ruling; the FCC wouldn’t be able to merely stand on its authority. In this case, Graham said, the decision could be up to the courts and their view on the FCC’s 2017 decision, as well as a pending decision from the U.S. Supreme Court on the FCC’s prior 2015 decision, which may violate earlier jurisprudence.

For states that have issued executive orders that use their monetary power to get broadband companies and ISPs to implement net neutrality practices in order to obtain the state’s business, Graham said that though it’s not a direct regulation, the practice is an indirect regulation, and could succumb to preemption. The only way it could potentially survive preemption would be if the action was very narrow in scope and only applied to one company, and the order originated from an issue that requires such an order, and even then, could still be challenged, said Graham.

Given the legal authority on the side of the FCC according to prior court rulings, Graham said that the timing of the FCC’s decision and the response to try and keep the 2015 rules is political in nature, and could cause a dilemma in legislatures across the country. Layton emphasizes that Democratic state legislatures pushing for these proposals are showing they have few ideas for how to improve their state’s economies.

“When you have no real policy proposals, the best you can do is virtue signaling and copy-paste from the Democratic Party playbook,” Layton said. “The Democrats used to be a party of science and innovation, but now all they can offer is central planning of technology. They are out of policy ideas.”

The next steps facing both the FCC and states who are fighting back with executive action and legislation is to wait for the courts to rule. The only way a regulation can be challenged is if an ISP or a broadband provider challenges the action of a state in court, at which point, the court might have to wait to rule until SCOTUS deliberates the constitutionality of the 2015 order.