Last week, the FCC used its 2010 Net Neutrality transparency rule to fine AT&T $100 million for impairing the speeds of its grandfathered, unlimited mobile data plan users without apparently offering proper notice to them.
Without getting too far into the weeds, FCC Commissioner Ajit Pai thinks the FCC is totally off-base here with its arbitrary and capricious determination. As he eloquently explains, AT&T met all of its obligations, and then some, in communicating with the grandfathered unlimited users that their speeds would be slowed down after reaching a certain threshold in each billing cycle.
In the end, this case is really just a regulatory bait and switch. The flexibility the agency promised is being replaced by previously unknown and arbitrarily selected obligations. A once-approved network management practice is now out of favor and carries with it a $100 million penalty.
Crazy, right? Yeah. If this is a sign of the FCC’s “clear” Net Neutrality enforcement going forward, then the Internet’s got a problem, big time.
Anyway, I have a real issue with a central line of the FCC fine, which struggles mightily with the (FCC’s own) facts, and which reveals the FCC’s disturbing penchant to kite its numbers when it serves its interests and agenda.
The Commission states:
Since the [Net Neutrality] Transparency Rule went into effect in 2011, the Commission has received thousands of complaints from AT&T’s unlimited data plan customers alleging that they have had their speeds intentionally reduced, and who claim that they purchased an unlimited data plan and are not getting the services that they paid for… (Emphasis added)
What made this claim immediately curious to me is that in November of 2013 I got an FCC official to go on record to say the agency doesn’t specifically tally Net Neutrality complaints. Yet, the above statement stretches back to 2011, which notes thousands of specific Net Neutrality complaints since then.
Where are these complaints (that were never tallied in the first place)? Really, if there were in fact thousands of these complaints, why didn’t the FCC trumpet that? Goodness, it would have been all over the pro-Net Neutrality press, “proving” the need for the rule.
Having hard data showing real harm was always a problem for the FCC because, factually, violating Net Neutrality – whatever that means – never happened. With no real outbreak or problem on its hands, the agency has always been relegated to an algorithmic case of “what ifs,” and “bad stuff could happen,” and the “sky is falling”…
Even the FCC seemingly acknowledges this in a footnote buried 291 pages into the Order, letting slip that:
…[The] CWA and NAACP agree with the Commission’s assertion that one of the primary reasons there have been limited violations of Internet openness is because the Commission has had policies in place to address misconduct. (Emphasis added)
Guess we don’t need the rule, eh?
Oops, too late.
Anyway, the FCC’s own documents reveal something strikingly at odds with its assertion in the fine. Namely, that there have never been thousands of Net Neutrality complaints, let alone thousands of specific “unlimited plan” complaints.
A simple word search of the FCC’s Net Neutrality Order brings up exactly zero “Net Neutrality Complaints,” “unlimited complaints,” or even “thousands of complaints.”
There has to be an explanation for this, right? So, I called over to the FCC and asked (and e-mailed) them this question:
How did you arrive at thousands of unlimited plan complaints when:
In the new Net Neutrality / OIO Order it points only to a “significant concern” raised by these plans;
That “[s]ince the original transparency rule was promulgated, the Commission has received hundreds of complaints regarding advertised rates, slow or congested services, data caps, and other potentially deceptive practices,” encompassing a list that is far broader than just unlimited plans, and which is certainly less than thousands;
That in the Net Neutrality NPRM leading up to the OIO, complaints about “unlimited plans” aren’t even specifically mentioned; and
As late as November 2013, an FCC official said the agency did not tally Net Neutrality complaints individually, suggesting that there weren’t enough Net Neutrality complaints to justify a break-out of that data.
The agency does highlight a handful of complaints in the fine – six, that is. But, they all come from the summer and fall of 2014, which, if you remember, was fraught with numerous pro-Net Neutrality publicity stunts and related activity to get the grassroots out and force the FCC to regulate the Internet under 1934 telephone laws. Many of these have close intervening, activist dogwhistle events / calls to action, which cast further doubt on the probative value of the alleged complaints. More suspicious, however, is the fact that these complainers waited years to lodge their complaints with the agency (they must have really been concerned, right?).
All that said, the thousands of complaints since 2011 just aren’t there.
Confirming this, an FCC official answered my query, stating that there were “over 1,600 complaints” from 2011 to 2014. While it is certainly accurate to state that, if true, over 1,600 could reach above the magic number of 2,000, making the count literally thousands. But the official gave me this number after more than an adequate opportunity to explain the math. And, last I checked, that number does not qualify as thousands. According to that same official, the agency chose more recent examples because they “seemed especially relevant,” reflecting ongoing concerns about AT&T’s practices. In any event, I’d have to FOIA the FCC to see the actual complaints. But, sadly, oddly, conveniently, FCC practice means many of those are anonymous.
We may never know what’s in that mysterious, hyperbolic complaint box over at the FCC.
So, why should I care? I mean, these are only numbers, right? Big deal. They got stretched. What difference does it make?
Put simply, the FCC has a credibility problem. It wants to be a responsible steward of U.S. communications policy and the public trust, but its abacus is busted, and it’s choosing not to fix it. And, that choice leads to public policy outcomes which more nearly advance political and ideological agendas than anything else.
The thousands of complaints narrative was central to “proving” AT&T is a recidivist over-biller (or something awful like that).
Trouble is, it looks like the FCC is the real recidivist here. This line did not appear out of thin air, but was created and spun by some very skilled lawyers and public relations people over that the FCC. It was designed to embarrass and offend the company. It was designed to get headlines.
It was designed to mislead, like all the others.
Remember how bad a problem Net Neutrality was supposed to be; that “violations” were happening everywhere and America needed new rules to help the FCC police the Internet? Turns out that literally just 4 questionable “violations” ever occurred.
Remember the 4 million supporters of “strong Net Neutrality,” which the agency used to sell the rule? Turns out that even supporters believe the comments for Net Neutrality “might not be what they seem,” especially when a Soros-backed analysis revealed that only 2.5 million were ever received by the agency in the first place, and of those nearly 1 million comments stood firmly against the FCC’s Internet takeover.
Remember when the FCC decried the “fact” that 17% of Americans couldn’t get broadband. Turns out that, just in time for the new Net Neutrality rule, the agency changed the definition of broadband, sliding the goalpost to make it look like ever-fewer Americans could get good Internet access, even though before the arbitrary change nearly 98% of Americans could.
Remember when the agency said that Net Neutrality wasn’t about content control and doesn’t offend the First Amendment? Turns out the agency has outright prohibited every U.S. ISP – all 1,773 of them – from exerting even one shred of editorial control over their facilities because they think ISPs are actually railroad companies instead of communications companies. With the swipe of a pen, 1,773 communications companies became 0.
Basing public policy on cooked books isn’t right. It’s the hallmark of arbitrary and capricious governance, which is just a short hop away from tyranny. Americans should insist that the FCC ditch its feigned innumerate proclivities. Purposely counting like a 1st grader not only imperils the Internet ecosystem and its benefits for all, it undermines democracy.
You could hire a Descartes. Or, get a new TI calculator. But it changes nothing if your calculations are designed to mislead in the first place.