Fact-Checking Free Press Net Neutrality Violations

Several years ago, Free Press published a list of alleged net neutrality violations intended to show a real and ongoing problem that only federal regulations could address. The list was meant to address the allegation that net neutrality is a “solution in search of a problem”, a favorite line of critics.

The organization has updated the list in hopes of increasing its relevance to the current controversy, so it’s due for a fact-checking. The list spans a period from 2004 to 2013. We judge the relevance of the reported infractions by three criteria:

  1. Did the alleged infraction take place as represented?
  2. Was the infraction a meaningful limitation on Internet freedom?
  3. Would the infraction have been covered by either the 2010 or 2015 Open Internet Orders?

So here are the claims, quoted and discussed one by one.

The facts: Madison River was a small, rural telco with 40K DSL customers and a massive debt load of some $500 million. Following an upgrade of its infrastructure to support DSL, it did on fact block access to Vonage and other competing telephone services in order to ensure the cash flow to pay for the upgrade. So yes, this happened.

The impact: A similar tactic was employed by Korea Telecom in 2006 when it upgraded its copper infrastructure to fiber. Korea Telecom’s action was perfectly legal as it was permitted by legislation to block foreign VoIP services that didn’t comply with its telecommunications law.

In the US, this would be equivalent to blocking services like Skype that don’t pay into the Universal Service Fund, support 911, or comply with other conditions that apply to telephone services of other kinds. Hence, this is more a question of regulatory compliance with the terms and conditions of telecom service than of Internet freedom.

Is it worthwhile to block VoIP to pay for DSL? How about fiber? Perhaps it is, at least for a time. But this is a policy question we’re not allowed to consider when net neutrality is the law.

The resolution: The FCC forced Madison River to sign a consent decree, pay a $15K fine, and permit Vonage to operate on its network. This result took place before the US had any formal net neutrality regulations, but it could have been achieved under either of the two Open Internet Orders or under conditions for USF subsidy payments. The FCC had Madison River over a barrel because the company lacked the funds to mount a meaningful legal defense. The company is now owned by CenturyLink, a carrier that complies with net neutrality as a matter of policy.

The facts: In 2007, net neutrality advocates learned that some users of the BitTorrent P2P “file sharing” program experienced slow uploads when BitTorrent was not also downloading files. This was visible to users of monitor programs such as Wireshark because Comcast used a peculiar technique – TCP Reset spoofing – to disconnect downloaders from Comcast customers.

The impact: Users of piracy networks are limited to downloading no more data than they upload. It’s necessary for them to earn download credits by making files available to others by seeding (uploading files to others). Legitimate uses of BitTorrent – such as making Linux available – do not typically have a download credit system. Overall, the practice had more impact on unlawful users than on legitimate ones, but it did shift the upload burden to other ISPs.

The resolution: By the time the FCC issued its order in October, 2008, Comcast had discontinued the practice, which was a stopgap meant to prevent BitTorrent users from interfering with Vonage users. Following the FCC controversy, BitTorrent designed and implemented LEDBAT, a means of self-limiting its bandwidth when other applications are active. And for a time, Comcast implemented a “Fair Share” system that enabled it to limit heavy usage during periods of congestion in a protocol-agnostic way. The details of LEDBAT and Fair Share were published in Internet RFCs.

So the problem was congestion caused by BitTorrent on a DOCSIS 1.1 network. It was resolved by DOCSIS 3.0 and dialog between BitTorrent and the ISPs in the Internet Engineering Task Force forum. The FCC’s action didn’t survive court review but the issue had been resolved before the FCC investigation concluded.

  • TELUS: In 2005, Canada’s second-largest telecommunications company, Telus, began blocking access to a server that hosted a website supporting a labor strike against the company.

The facts: Striking employees placed the names and addresses of Telus employees who crossed picket lines during a strike on their websites. The pages encouraged readers to harass and intimidate the employees. In order to ensure their safety, Telus blocked access to the websites and sought injunctions from the Canadian courts. The injunctions were granted, the pages were taken down, and access was restored.

The impact: For the week when the injunction was pending, websites sharing IP addresses with the offending websites were also blocked to Telus users. No Telus employees were harmed, but the union suffered a major setback.

The resolution: Canadian courts took no action against Telus although they did order the offending pages taken down. The FCC has no jurisdiction in Canada.

  • AT&T: From 2007–2009, AT&T forced Apple to block Skype and other competing VOIP phone services on the iPhone.

The facts: While Apple approved a version of the Skype application for the early iPhone that only permitted its use over Wi-Fi networks, the allegation that its action was caused by AT&T remains unproven. In a related 2009 inquiry, Apple told the FCC that it set its own policies on app store approvals without consultation with carriers.

The impact: The timing of Apple’s more expansive policy toward voice applications corresponds with the transition of carrier networks to 3G. It’s doubtful these applications would have been reliable on 2G networks in any case.

The resolution: The FCC has no jurisdiction over app stores, so this claim is a red herring. It’s perfectly plausible that Apple’s policies toward voice apps had more to do with quality concerns than with pressure from carriers. Apple is, after all, a very strong willed and independent company today, and was even more that way when when Steve Jobs was in charge. Hence it’s doubtful that the FCC played a role in resolving this issue.

  • WINDSTREAM: In 2010, Windstream Communications, a DSL provider with more than 1 million customers at the time, copped to hijacking user-search queries made using the Google toolbar within Firefox.

The facts: Free Press portrays this incident as “hijacking user-search queries”, at best a misleading description. Windstream actually intercepted failed DNS lookups for a brief period, redirecting error pages rather than searches. Windstream says error page redirection was caused by misconfigured software and was not deliberate:

Windstream implemented a network change on Friday, April 2 that affected certain customer Web browser search box queries, producing search results inconsistent with Windstream’s prior practices. Windstream successfully implemented configuration changes today to restore original functionality to these search queries after hearing from affected customers.

The impact: None, when domain names are typed correctly. Minor, when URIs were mistyped.

The resolution: Customers complained and the problem was fixed in less than a week. Free Press complained to the FCC, but the ISP corrected the problem before the FCC responded to the complaint.

  • MetroPCS: In 2011, MetroPCS, at the time one of the top-five U.S. wireless carriers, announced plans to block streaming video over its 4G network from all sources except YouTube.

The facts: MetroPCS, now owed by T-Mobile, was a bargain basement mobile carrier with 22 Mhz of spectrum in its average urban market, and minimal allocations in rural areas. This was barely enough to provide voice and text, basic web browsing, and minimal video streaming. Because of its limited spectrum allocation, the company was more concerned about efficiency than were the large carriers. It was the first US network to implement LTE.

MetroPCS made a deal with YouTube to provide highly compressed video streams to its customers, and Free Press complained to the FCC that this arrangement was harmful to other video streaming services.

The impact: MetroPCS sued the FCC as soon as the 2010 Open Internet Order was passed, on the heels of the Verizon suit. Rather than pursuing its case to the end, the company agreed to a buyout from T-Mobile and withdrew the suit. Hence, the nation lost a low-priced mobile networking option, albeit one with a less than total view of the Internet.

The resolution: If MetroPCS had pursued its lawsuit it would have won since the 2010 Open Internet Order was unlawful. The impact of the 2015 OIO is less clear because that order has a loophole for carriers who provide service to subsets of the Internet. It’s conceivable that with the proper disclosures, MetroPCS would still be allowed to offer discount service to a portion of the Internet, but we’ll never know.

  • PAXFIRE: In 2011, the Electronic Frontier Foundation found that several small ISPs were redirecting search queries via the vendor Paxfire.

The facts: Once again, Free Press provides a misleading account of error page redirection. Just like the Windstream case, this is an instance of small ISPs trying to make customers happy while picking up a few pennies from mistyped domain names. The story is based on research done at Berkeley’s International Computer Science Institute that’s riddled with errors. Check these corrections:

These proxies collect receive, examine and process all search terms and results, but only log a small subset of search queries that were entered into a browser search box and are related to major trademark holders, the users’ web searches and the corresponding search results, mostly forwarding them the rest to and from the intended search engines. This allows Paxfire and/or the ISPs to directly monitor all searches made by the ISPs’ customers Paxfire’s code to examine the queries and responses, selecting out those that are of relevance to its business. and build up corresponding profiles, a process on which Paxfire holds a patent. It also puts Paxfire in a position to modify the underlying traffic if it decides to.

And the practice was nothing more than an experiment that failed:

Update: Since the practice of redirecting users’ searches was first exposed by New Scientist last week, we have learned that all the ISPs involved have now called a halt to the practice. They continue to intercept some queries – those from Bing and Yahoo – but are passing the searches on to the relevant search engine rather than redirecting them.

The impact: Much ado about nothing.

The resolution: The practice was dropped by the unnamed ISPs who tinkered with it as a result of customer feedback. No FCC action was needed, so this is really grasping at straws. Are ISPs allowed to experiment with added value services? Not if Free Press gets its way.

  • AT&T, SPRINT and VERIZON: From 2011–2013, AT&T, Sprint and Verizon blocked Google Wallet, a mobile-payment system that competed with a similar service called Isis, which all three companies had a stake in developing.

The facts: This is the incident that John Oliver made fun of because Verizon developed a payment system called Isis. Isis, of course, was the name of an Egyptian goddess long before it was adopted to describe Islamic State. The issue was the poor security design of Google Wallet. It took control of the phone’s security element, blocked out other apps, and collected personal information.

The impact: iPhone users were unable to use Google Wallet until its security issues were corrected to Apple’s satisfaction.

Resolution: Google had to fix its security issues in order to be approved by the Apple app store. This finally happened in 2013, after the app’s insecure NFC feature was disabled. Google implemented the NFC functions in Android Pay. Like the other issues with app store approval, this issue is outside the FCC’s jurisdiction. If there was a conflict of interest, it was between Apple Pay – a successful product – and Google, a company with which Apple has had a rocky relationship.

The facts: This European report has nothing to do with net neutrality in the US.

The facts: Verizon charged users $20/month for mobile hotspot service. This was prominently disclosed by the carrier in its terms of use.

The impact: Verizon customers who wanted to tether their laptops to the Internet through their phones had to pay extra for the privilege.

The resolution: In 2012, the FCC fined Verizon $1.25 million for blocking the hotspots and made it relent. The FCC had the power to do this because Verizon won 700 MHz C Block spectrum at auction that carried specific “open access” conditions barring any blocking of any app at any time. This spectrum was less expensive than unencumbered spectrum, so Verizon had to honor conditions of sale. So this was less a matter of Open Internet Order rules than of auction conditions.

The facts: FaceTime is a video chat program created by Apple for Apple devices. AT&T enabled it on its network in phases: initially it was only allowed on Wi-Fi and on the mobile network for users with tiered data plans. A few months after introduction, it was enabled on all LTE phones without conditions with respect to contracts. See the FCC Open Internet Advisory Committee’s case study for all the details.

The impact: AT&T users with 3G phones and unlimited data plans were unable to use FaceTime on the mobile network.

The resolution: AT&T satisfied itself that FaceTime wouldn’t cause problems for its LTE network, but remains convinced that FaceTime over 3G is problematic. The FCC took no action other than referring it to the OIAC, which made a mixed assessment. It’s complicated.

  • VERIZON: During oral arguments in Verizon v. FCC in 2013, judges asked whether the phone giant would favor some preferred services, content or sites over others if the court overruled the agency’s existing open internet rules. Verizon counsel Helgi Walker had this to say: “I’m authorized to state from my client today that but for these rules we would be exploring those types of arrangements.”

The facts: The key word in Walker’s answer is “those”. To understand what kinds of arrangements she’s talking about, we have to look at the question she was asked. Free Press dramatically misrepresents the context in order to connect her comment to an entirely different question than the one that was put to her. Here’s her complete answer:

Well, as I was saying to Judge Silberman, what the Agency has done here is shut down and prevent the development of a two-sided market with respect to Internet services. There is evidence in the record that edge providers are contracting with broadband providers where actually they demand payment, ESPN has a website that is so popular that ESPN demands and receives payments from broadband providers in order to allow those subscribers to access the ESPN content. So, the markets they are certainly in that regard, and I’m authorized to state by my client today that but for these rules we would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be available on the Internet.

She was discussing two-sided markets, arrangements in which the ISP pays or charges edge providers separately from retail customers. She mentions ESPN charging ISPs to carry its content (listen to the arguments at 29:00) and before that discusses arrangements where customers pay different fees for different grades of service. At 29:28, she says “this order will shrink the types of services that will be available on the Internet.” That’s very different from favoring some services over others. So Free Press is simply lying.

The impact: The 2010 Open Internet Order shrank the types of services available on the Internet by effectively banning transmission services tailored to applications that don’t fit the traditional mold.

The resolution: This issue remains unresolved. The 2015 Open Internet Order doubled-down on the ban on differentiated services by replacing the 2010 order’s rebuttable presumption against tailored services for a fee with a clumsy ban.

Conclusion

The horrors the Free Press claims to have unearthed are, for the most part, simply insubstantial fear-mongering. Lists like this may be good for fundraising, but they contribute nothing of value to policy discussions. Whatever comes next in the net neutrality debate needs to be rational and fact based. And we’re clearly not there yet.

Net neutrality was meant to be fast path to anti-trust enforcement. Rather than relying on a slow and complicated factual inquiry over anti-consumer and anti-competitive processes, net neutrality originally meant all packets had to be treated equally.

The belief was that a ban on differential treatment would make monopoly abuses impossible. But this ban has harmful side-effects: it keeps certain types of novel services off the Internet and makes it hard for small, rural carriers (such as Madison River) to achieve profitability.

Most alleged net neutrality violations didn’t happen, were quickly resolved, or were outside the FCC’s jurisdiction. Perhaps we should ask what the net neutrality campaign hopes to achieve.

[Updated with Walker’s complete answer.]