Former Staffers Say FCC May Be Hiding Data Showing Broadband Industry Problems

The FCC is refusing to release data from an FCC program that tracks whether ISPs actually deliver the broadband speeds they advertise. Once a promising way to name and shame ISPs that fail to deliver quality service, data from the program is now being withheld by an FCC routinely accused of being far-too cozy with the industry it’s supposed to hold accountable.

Back in 2011 the FCC launched something called the Measuring Broadband America program. Under this program, thousands of volunteers were given custom-firmware embedded routers that provided useful insight into whether ISPs were delivering advertised broadband speeds. Initially, the program worked as intended. The FCC’s very first report showcased several ISPs that were failing to deliver anything close to the speeds they advertised. New York area cable provider Cablevision, for example, was found to deliver just 50 percent of advertised downstream speeds during prime time courtesy of an oversubscribed network. By the FCC’s second report in 2012, the company had improved dramatically, offering 128 percent of the bandwidth it advertised during peak usage hours. In the absence of more competition, having a regulator name and shame under-performing ISPs appeared to actually help motivate industry improvements.

That was then, this is now.

Since Ajit Pai was appointed boss of the FCC in early 2017, the FCC has yet to release any data from the program. Last year’s report wasn’t released at all, and the FCC has remained mum on whether it will release any of the program’s data this year, either. Ars Technica has confirmed that SamKnows, the UK company hired to run the project, is still collecting data from thousands of volunteers and their routers, meaning taxpayers are still funding the program and volunteers are still participating. But the FCC has refused to answer any press inquiries as to why they’re no longer making this data public.

Ars notes that FOIA requests filed back in August have yet to be answered, and the FCC has yet to meet numerous deadlines for providing FOIA access to emails discussing the program.

Former FCC lawyer and advisor Gigi Sohn told Motherboard that withholding this data does a significant disservice to both the public and FCC policy, since it provides a useful way to contrast the “broadband industry’s promises with its actual performance.”

“Without this information, consumers who are lucky enough to have a choice of broadband providers won’t be able to make informed decisions about which broadband provider to choose,” Sohn told me via email. “This information is also vital for policy makers seeking to enforce federal and state laws protecting consumers from unfair and deceptive trade practices.”

The FCC did not respond to a request for comment from Motherboard. The agency’s refusal to be transparent about the current status of the program is not particularly surprising. Pai’s FCC is facing numerous lawsuits for its failure to adequately respond to FOIA requests, including several different suits focused on the net neutrality repeal. While the agency has yet to offer a justification for its failure to release data from this taxpayer-funded program, Sohn posits that it’s being withheld because it fails to support Pai’s claims that his deeply unpopular policies are somehow making American broadband better.

“The only reason I can think of is that the data doesn’t promote the Chairman’s narrative that broadband industry investment and performance allegedly suffered when it was subject to net neutrality rules grounded in Title II of the Communications Act,” she said. Pai has repeatedly tried to claim that net neutrality rules curtailed US network investment, something disproven by SEC filings, earnings reports, and the public statements of numerous industry CEOs. Remove net neutrality and other consumer protections, Pai has repeatedly claimed, and broadband will dramatically improve.

So far that hasn’t proven to be the case. The United States still personifies mediocrity when it comes to broadband speed, availability, and price, and the biggest ISPs routinely see the lowest customer satisfaction ratings of any industry in the country. All courtesy of limited competition.

Failure to release data from the Measuring Broadband America program is just the latest example of an FCC not keen on holding ISPs accountable for these failures. Pai has also voted down efforts to improve terrible U.S. broadband maps, and has routinely been accused of weakening the very definition of “competition” in a bid to obscure industry issues.

Similarly, the repeal of net neutrality also eliminated meaningful transparency rules requiring ISPs to be clear about the specific limitations of broadband connections. Instead, Pai replaced those rules with transparency guidelines that are entirely voluntary, making it harder for consumers to clearly understand the kind of connection they’re buying.

In addition to rolling back numerous consumer protections, Pai’s policies have weakened the FCC’s authority over ISPs, shifting oversight to an FTC that only has the authority to take action act if it’s clear that ISPs are being “unfair and deceptive” under the FTC act, Sohn said. “To the extent that the FCC has abdicated its broadband oversight role to the FTC, that agency can’t do its job protecting consumers from unfair and deceptive trade practices if nobody can figure out whether the broadband providers are telling the truth or not about their speeds,” she argued. The less accurate data the public has on the broadband industry’s obvious dysfunction, the easier it will be for Pai to justify doing nothing about it.