It is becoming clear that under the new Congress it is going to be open season on the FCC and ISPs.  Congress has already demanded the FCC begin an investigation into the release of real-time mobile customer location data and whether the Commission inappropriately worked with ISPs to court shop.  Now Congress is questioning whether ISPs are throttling and prioritizing mobile data without providing the transparency data required by law.   Here are the facts.

According to a study performed by Northeastern University and the University of Massachusetts, the four largest mobile providers are throttling (slowing) Internet traffic to and from popular apps like YouTube and Netflix.  As reported by Bloomberg on September 4, 2018, the study used a smartphone app called Wehe, downloaded by about 100,000 consumers, to monitor which mobile services are being throttled when and by whom.  The researchers found that certain edge providers were often throttled when customers were downloading (or uploading) content.  These included YouTube, Netflix, Amazon Prime Video and NBC Sports. 

The researchers found that from January until early May in 2018, Verizon treated certain edge provider traffic differently, mostly slowing it more than 11,000 times, AT&T more than 8,400 times, and T-Mobile almost 4,000 times.  The ISPs defended this practice, noting this was some of the routine network management they perform daily and pointing out that under current law (the Restoring Internet Freedom Order), it is perfectly legal.

Certain U.S. Senators became aware of this data and were appalled.  Last November, three of them—Ed Markey (D-MA), Richard Blumenthal (D-CT) and Ron Wyden (D-OR)—requested additional data from the ISPs.  They were less than thrilled with the responses, believing that the companies failed to respond to many of their questions and generally gave them the runaround.  

The problem for the Senators is that under the current rules the ISPs are correct, both in the fact that they are permitted to perform routine network management and that they can throttle traffic if they make their customers aware of this practice.  However, these Senators are furious with the FCC for eliminating the net neutrality rules and furious at ISPs for taking advantage of the lack of “bright-line” rules forbidding practices such as throttling.  Thus, they have decided to do a “back-door” attack on the FCC and ISPs by claiming that the ISPs violated the transparency rules when throttling.  

In a letter to the Commission they demanded that these violations be investigated.  As proof, they noted that customers are usually unaware their mobile data is being throttled.  The Senators observed:

While T-Mobile and Sprint admitted that they engage in prioritization of certain service plans and claimed to be transparent about those practices, they buried notice of those practices. Lengthy terms and conditions or small text at the end of webpages using broad terms should not be considered disclosure, nor are they the basis of effective consumer choice or control.  FCC rules require disclosure of those practices in a manner “sufficient for customers to make informed choices” regarding their internet access services...We therefore ask that by February 27, 2019, the FCC advise us in writing whether it will investigate both the mobile carriers’ video streaming policies and their disclosures to their customers about these policies.  The lack of clear and complete information that the carriers provided in response to congressional inquiries should prompt the Commission to investigate the carriers’ practices and determine if they violate existing transparency rules. (February 6, 2019 letter to FCC Chairman Ajit Pai). 

We believe the Senators have an uphill battle ahead of them.  First, there has been no public outpouring of customers complaining about mass throttling.  Second, ISPs make clear to customers in the terms and conditions of their contracts that their data could be impacted during normal network management.  Thus, until customers start complaining in mass, it is hard to see how the FCC could prove that ISPs are not being transparent enough.  
Nevertheless, ISPs could certainly do a better job making their network management practices more visible to customers.  That is simply good policy and could preempt future customer complaints.

There are better ways to ensure transparency rather than launching yet another open-ended FCC investigation.  Senators could meet with ISPs and the FCC to discuss their concerns.  ISPs could make their network management practices more visible and explain exactly what they are doing to Congress.  This proposed investigation is more a function of the fact that in this partisan time, certain members of Congress view the FCC and its ISP “allies” as the enemy.  Rather than work out differences, Congress will demonstrate its acrimony through endless investigations rather than negotiating solutions.  As usual, the public is the biggest loser.