Letters to Big Four Wireless Carriers Probe Intersection of Business, Engineering Practices, FCC Says

An FCC official said the letters contain proprietary information and will not be released. Similar to the questions Wheeler asked Verizon, the letters ask whether, and if so how, reasonable network management is being used for business purposes rather than for technical/engineering reasons, the official said.

The Verizon letter cited a report the carrier plans to “manage” data connection speeds “for a small subset of customers -- the top 5% of data users on unlimited data plans” but only at times when the network is experiencing high demand (CD July 31 p1). “'Reasonable network management’ concerns the technical management of your network; it is not a loophole designed to enhance your revenue streams,” Wheeler wrote.

Scott Jordan, professor of computer science at the University of California-Irvine, said in an interview Monday it’s “critical” that the FCC distinguish between business policies and traffic management policies as the agency develops revised net neutrality rules. “I think they're going to have to revisit and tighten what reasonable traffic management entails,” he said. The FCC’s May rulemaking notice on net neutrality rules “is trying to communicate the notion that consumers should get what they signed up for,” Jordan said. That could be problematic if consumers pay for unrestricted data use but “are targeted based on other users’ actions and whether they're in the top 5 percent of the heavier users,” he said.

Follow up to the Verizon letter was inevitable, said University of Nebraska College of Law professor Gus Hurwitz. “The carriers’ approach to handling tower-level congestion is a black box right now,” he said. “It’s important for the commission to understand these practices generally as part of its broad regulatory mandate.”

Hurwitz said he was “torn” in his view of Verizon’s practices, the subject of the initial inquiry. “My initial take was the commission’s concerns are misplaced,” he said. “But as I have thought further about it, I do have trouble with Verizon’s approach to throttling incorporating business considerations in addition to technical considerations. At the same time, I expect that the results are likely the same, under any model, it is likely to be the same users generally targeted for throttling."

Public Knowledge last week (CD Aug 7 p 11) filed letters at the FCC charging that the four national carriers had violated transparency provisions in the 2010 net neutrality rules. John Bergmayer, PK senior staff attorney, said Monday the FCC letters likely are a sign the agency wants to better understand industry practices. “Practices that might be OK for network management purposes are not just given a free pass in all circumstances,” he said. “Regardless of the reasons behind the practices” transparency is an issue, he said. Better transparency “will help both the FCC and the public understand what actions the carriers are taking and why.”

But TechFreedom President Berin Szoka said the letters are “political theater,” though necessary theater for Wheeler to deflect attention away from the push to reclassify broadband as a Title II service. “Wheeler is in an increasingly difficult position politically,” Szoka said. “He tried to chart a relatively moderate course, issuing rules that would actually survive challenge on common carriage grounds under the Verizon decision. For his trouble, he’s been demonized by an increasingly angry mob shouting nonsense about Title II.”

Wheeler knows Title II “won’t actually let the FCC do what the mob wants, banning prioritization, but would raise a host of other problems and bog the FCC down in perhaps a decade of needless litigation and bitter political feuding,” Szoka said. “To keep his job, he needs to seem tough.”