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Pai vs. Wheeler

State Net Neutrality Laws Yielded Little Enforcement Activity

State enforcers of net neutrality report no legal actions against ISPs more than five years after the laws took effect. A Communications Daily public records request showed that Washington state’s attorney general's office received 21 complaints related to net neutrality since enacting its first law in March 2018, but most were resolved informally. Half the states with such laws told us they hadn’t received complaints.

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These laws were pointless to begin with, and it’s not a surprise that enforcement has been a dead letter,” said former FCC Chairman Ajit Pai, whose commission reversed the 2015 federal rules in 2018. But 2015 FCC Chairman Tom Wheeler offered a different take: “That there are laws in place and they are being obeyed” is “hardly a finding that the laws are unnecessary. It's like saying that since car crashes have declined, there is no need for speed limits.”

The FCC could soon restore net neutrality rules that might override state laws (see 2402270064). California, Colorado, Maine, Oregon, Vermont and Washington state enacted net neutrality laws from 2018 to 2019 after Pai’s FCC reversed federal open-internet rules. Some states set rules like the FCC's, while others restricted state contracts or state subsidies. Industry dropped a lawsuit challenging California’s law after losing at the 9th U.S. Circuit Court of Appeals (see 2205050041). Separate ISP litigation against Vermont’s law is pending in the U.S. District Court of Vermont, which has kept that state's law from being enforced (see 2307260024).

There have not been any cases filed to date” in court related to the net neutrality law, said a Washington AG office spokesperson. The state imposed rules like the FCC's. However, the office doesn’t “comment on pending investigations, including confirming whether they exist.”

The Colorado Public Utilities Commission "is unaware of any abusive practices regarding net neutrality, but it's difficult to say whether the enactment of the state law is part of the reason for this,” a PUC spokesperson said. Colorado’s 2019 law prohibited giving high-cost support to companies that violate net neutrality. The PUC “is unaware of any complaints ever received that would fall into the category of net neutrality, nor has it conducted any investigations regarding potential or suspected violations,” its spokesperson said. The PUC may act under the law “only if it is made aware by the broadband development board of a final order or decree by a federal agency against" a Colorado high-cost support recipient, the spokesperson said. “We are unable to [locate] any such cases.”

The Oregon Public Utility Commission hasn’t received petitions seeking PUC determinations related to the state’s 2018 net neutrality law, said a PUC spokesperson: "Oregon adopted legislation and the PUC established rules to ensure companies that want to conduct business with public bodies … agree to net neutrality.” Maine’s AG office isn’t “aware of any complaints” about net neutrality since enacting its law restricting state contracts in 2019, said a spokesperson. “The office doesn’t provide any information about the existence of investigations.”

California DOJ “can’t comment on complaints or investigations that do not evolve into public enforcement actions,” a spokesperson said. “However, we are pleased that industry has generally come into compliance with the law and encourage members of the public to reach out if they are aware of violations.” While California enacted rules like the FCC's in 2018, the state couldn’t enforce it until March 2021 due to the 9th Circuit case.

The state DOJ denied our California Public Records Act request seeking all net neutrality complaints received since the law took effect. “These records are confidential law enforcement records of the Attorney General, and, therefore, are exempt from disclosure under the [PRA],” it said.

Laws 'Pointless' or Working?

We hoped when Washington [state] acted quickly and aggressively to restore net neutrality protections that we would set the tone for the rest of the country,” said state Sen. Drew Hansen (D) in an interview. “The absence of significant enforcement actions suggests that the telecom companies followed the net neutrality rules that we put in place.” Added Hansen, who wrote the state's law: “We can infer from the intense lobbying effort that went into repealing net neutrality at the federal level that many of these companies would have been delighted for the opportunity to do something different.”

But two Republicans who voted to reverse the FCC's 2015 rules disagreed. “It is equal parts amusing and embarrassing to watch the contortions that so-called ‘net neutrality’ disciples have to engage in as they continue to try to persuade someone, anyone, that the sky is about to fall -- or, in this case, that it would have fallen but for virtue-signaling state laws mimicking Title II,” Pai said. “ISPs haven’t blocked content, throttled connections, or otherwise engaged in conduct that would violate net neutrality rules.” But “no set of facts” will convince net neutrality advocates “to give up this tired, pointless issue -- and they appear to remain unaware that they lost the fight for good over half a decade ago when their hysterical predictions of a digital dystopia didn’t come to pass,” he said.

FCC ex-Commissioner Mike O’Rielly had a similar view. “It’s no surprise that flawed liberal populist concepts embedded in state net neutrality laws are not generating violations,” he said. “Contrary to assertions that this proves the laws are working, the reality is that providers do not pursue anticompetitive practices because it’s bad for business. Shamefully, the threats of uneven enforcement and the patchwork of conflicting provisions cause extensive regulatory and financial uncertainty, harming providers and thus consumers.” If the FCC resuscitates net neutrality rules, “which would be a massive error, at minimum it must contain complete and indisputable preemption of related state activities,” he added.

Wheeler noted that ISPs say “horrible things” will happen if net neutrality rules are adopted. Yet, “it is law in six states and where is the suspension of investment, or impact on margins, or the other threats the industry has been trotting out?”

National telecom associations USTelecom, NCTA and CTIA declined to comment on whether and how state net neutrality laws influenced their members since 2018. Free Press, which is pressing to bring back federal net neutrality regulations, saw “no smoking guns” in states, both those with and lacking net neutrality laws, though it’s hard to know for sure there were no violations without having a national oversight authority, General Counsel Matt Wood told us. ISPs probably didn’t want to “push the envelope” after the FCC’s 2018 reversal because the state laws arrived immediately, there was litigation and then Democrat Joe Biden became president, he said. ISPs are unlikely to “regionalize” their practices and say “we’re going to have paid prioritization in Texas but not in California,” added Wood: Having laws in influential states like California and Washington was “enough to preserve that status quo.”

States stepped in after the previous FCC withdrew net neutrality rules, said a spokesperson for FCC Chairwoman Jessica Rosenworcel. “In effect, the U.S. has had open internet policies that providers are abiding by right now -- they are just coming from Sacramento and places like it. But when you are dealing with the most essential infrastructure in the digital age, we benefit from a strong federal standard that protects all of us.”

Wash. ISPs Defend Practices

The Washington AG office provided 21 net neutrality complaints it received from May 16, 2018, to July 31, 2023, in response to our Washington Public Records Act request. The office resolved 20 through an informal complaint resolution process wherein it forwards complaints to the implicated companies and asks for a response.

Fourteen complaints alleged throttling or blocking by ISPs including AT&T, Comcast, Charter Communications, Hurricane Electric, Lumen’s CenturyLink, T-Mobile and Verizon Wireless. In their responses, ISPs denied wrongdoing and stressed they follow net neutrality principles. They often pointed to other possible reasons for disrupted internet connections.

Comcast “has consistently supported strong, legally enforceable net neutrality protections that help ensure a free and open Internet,” the cable company responded to one complaint. “We do not and will not block, throttle, or discriminate against lawful content delivered over the Internet -- and we will be transparent with our customers about these policies." Comcast has fast internet but can’t “guarantee that a customer will achieve those speeds at all times,” the company replied to another complaint. Comcast attributed that customer’s problems to a filter used that prevents an internet-only subscriber from accessing cable TV. “These filters do not block Internet service, but it was determined that the filter might be contributing to … service degradation.” Comcast said it removed the now-unnecessary filter.

Verizon has and remains "committed to the open Internet,” the carrier responded to another complaint. It defended using network address translation (NAT) on a 4G hot spot, which the complainant said had blocked real-time transport protocol (RTP) audio for "numerous" VoIP providers. "NAT is an industry-accepted network management practice that provides additional security and conservation of IP address space,” said Verizon: State law and FCC rules “allow providers to engage in reasonable network management practices such as NAT.”

"CenturyLink does not throttle data,” the company replied to a complaint about a morning-long internet outage. The customer’s “line is provisioned for 10 Mbps, and although he is currently connecting at 15 Mbps … the area is currently at full capacity with no speed upgrades or new customers allowed,” CenturyLink said. “When at capacity, customers may experience slow speeds, packet loss and latency during peak hours, including nights and weekends. At this time, there is no upgrade scheduled for the area.”

No inappropriate use of algorithms has or is occurring," CenturyLink told another complainant who claimed the company’s “computerized algorithms” periodically throttled bandwidth. But the company said signal strength can sometimes drop when the company monitors internet speeds. Ultimately, a technician found an "issue with power levels which were corrected," the company said. The answer didn’t satisfy the customer, James Heppler, who insisted there was “system wide abuse” in a follow-up with the AG office. “The question is whether the WA ATG will enforce the states net neutrality law." Even if the company isn’t “overtly throttling bandwidth, they are turning a blind eye to ‘Monitoring’ programs that inappropriately throttle speeds and does not restore the speed without manual intervention,” Heppler said in another message.

T-Mobile can't guarantee data speeds, which may vary depending on factors like location, how many people are on the network and a device’s operating system, processor, battery life or running applications, the wireless carrier said. It was responding to a complaint claiming that the carrier’s mobile customers received faster speeds than its home internet customers. "During times and places of network congestion, some customers may notice their T-Mobile phone may get faster speeds than Mobile Internet or Home Internet devices.”

Internet transit provider Hurricane Electric denied wrongdoing in response to a complaint by server rental company Crunchbits. Without notice or explanation, Hurricane “added a filter to our small business internet service which blocked one of our customers IP address announcements completely,” Crunchbits founder Eric Yingling complained July 31 2023. “This made them incapable of accessing the wider internet and also blocked anyone from outside reaching the legal content hosted on their server.” Hurricane replied on Aug. 17 that it had received an abuse report that violated its acceptable use policy, so it stopped accepting a certain IP network prefix from Crunchbits. It didn’t “prevent other networks on the Internet from announcing this prefix to Hurricane Electric,” nor did it “terminate Crunchbits” or “block packets to or from this prefix.” The answer didn’t seem to satisfy Yingling, who asked the AG office on Aug. 31 if the company would “now be at the step of finding representation and moving forward through the courts.” Crunchbits didn't respond to our inquiry.

Five complaints covered less-relevant issues. Two dealt with political viewpoint discrimination by companies, including Meta, Google and Twitter. One elderly consumer complained about receiving direct mail from Comcast advertising a faster and costlier plan. Another consumer claimed Comcast violated net neutrality by selling services at different price tiers. A fourth complained about not receiving local TV channels on DirectTV Now. Last, an individual claimed he couldn’t access certain websites due to Google's harassment and surveillance.

The only grievance that didn’t enter the informal process was a May 2018 complaint about a fraudulent comment filed at the FCC. The AG categorized its resolution as litigation. The AG office spokesperson said the note probably refers to states’ challenge of the FCC’s 2018 Restoring Internet Freedom order.

About 20 net neutrality complaints over six years isn’t unexpected, said Hansen. “We expect companies to follow the law … particularly when the law simply reenacts standards that were federal.” That state enforcers handled many complaints through an informal process suggests, he said, that the AG “did not see the type of pattern or practice of violations that would lead them to file a lawsuit.”