Back in 2011 the FCC launched something called the Measuring American Broadband program. It was revolutionary in the fact that for the first time, the FCC refused to simply take ISPs at their word in terms of the speed and connection quality of their broadband offerings. Instead, the FCC hired UK firm Samknows to embed custom-firmware modified routers in the homes of thousands of real world broadband volunteers, providing insight into the real state of US broadband network performance, not the rosy picture of US broadband telecom industry lobbyists like to paint.
Not surprisingly, actually using real world data to inform policy paid dividends. The FCC’s first report (pdf) in 2011 showed that some ISPs, like New York’s Cablevision, were delivering just 50% of the bandwidth they advertised during peak usage hours. Cablevision didn’t much like being called out in this way, and by the next report (pdf) in 2012 was shown to have fixed its problems, now offering actually more bandwidth than they had previously advertised (120%). It was, in the absence of more competition, a novel way to nudge ISPs toward doing the right thing.
Each year like clockwork these reports were released to the public. Until last year, that is, when then new FCC boss Ajit Pai simply refused to release the report at all, despite the fact that taxpayer dollars were still funding it and volunteers were still participating.
On Monday of this week, Jon Brodkin at Ars Technica wrote an excellent piece noting how Pai’s office not only didn’t release the report at all last year, but had refused to answer months of press inquiries as to why, and whether the FCC would release its data this year. He also noted how the Pai FCC had been tap-dancing around numerous FOIA requests for more detail for months (the FCC’s facing numerous lawsuits for ignoring FOIA requests on a litany of subjects):
“Because of Pai’s office’s silence, we filed a Freedom of Information Act (FoIA) request on August 13 for internal emails about the Measuring Broadband America program and for broadband speed measurement data since January 2017. By law, the FCC and other federal agencies have 20 business days to respond to public records requests.
The FCC responded to us but denied our request for “expedited processing.” We had argued that expedited processing was warranted because the broadband measuring data is out of date, depriving American consumers of crucial information when they purchase broadband access. The FCC disagreed, telling Ars, “we are not persuaded that the records you request are so urgent that our normal process will not provide them in a timely manner.”
Despite ignoring reporters for months, the day after Ars Technica wrote its story, Ajit Pai penned this blog post stating the FCC would eventually release the data, saying that going forward it would be buried within an appendix within other reports mandated by Congress. Pai made no reference to the Ars piece, and insisted this was being done because issuing separate reports was too much of a hassle:
“The FCC has long been required by law to submit a variety of reports to Congress. Each of these reports used to be issued as separate documents and at different times, making it hard for elected officials and the public to track everything down. To streamline these reports into a single document providing a comprehensive evaluation of the state of the communications marketplace in the United States, Congress, in the RAY BAUM’S Act of 2018, required the FCC to craft every two years what we are calling our Communications Marketplace Report. The draft report I’m circulating for my colleagues’ consideration consolidates many of the reports that the Commission had been previously required to produce. For the first time, the Report places essential information about mobile wireless, video, audio, wireline broadband, voice telephony, satellite, broadband deployment, and international broadband all in one place.”
In short, Pai is effectively trying to blame Congress for the disappearing of reports naming and shaming under-performing ISPs. But there’s nothing in the Ray Baum’s act that prohibits the FCC from releasing data from the Measuring American Broadband in standalone fashion. In fact, releasing a standalone report that specifically publicized under-performing ISPs was the entire point. Given the Pai FCC’s allergy to factual data, skepticism seemed justified.
While Pai’s FCC wouldn’t talk to Brodkin (or myself) about what was going on, someone at the FCC did tell CNET (whose coverage of the telcom industry tends to be… gentler) that the report would indeed be released… in the appendix of a much larger report… the day before Thanksgiving (when you can be sure few would actually read it or any news stories covering it):
“When asked by CNET about the criticisms, an agency spokesman said only that the data collected on broadband speed would be part of a report released Wednesday.”
So at best, the FCC was making it clear that a standalone report that used to clearly name and shame ISPs for poor service–will now be buried in the appendix of another report and released the day before one of the busiest holidays of the year. But why couldn’t the FCC tell reporters this when asked? And why was the FCC being so difficult in terms of FOIA requests? Brodkin was flummoxed:
so now the FCC is supposedly releasing that secret broadband speed data in an appendix to a larger report https://t.co/HaErPtTikb
I'm kind of sad that the FCC wouldn't tell me this… I'm beginning to think they don't like me :-( https://t.co/ZeUOAtiyyA pic.twitter.com/YX9deYJNiD
— The real Jon Brodkin (@jbrodkin) November 21, 2018
And when he circled back around to SamKnows, Brodkin was told that no, the data likely wouldn’t be released in this report, but might actually show up in December:
For what it's worth, SamKnows has told me that today's FCC report "is unlikely to include performance data from the MBA [Measuring Broadband America] program," and that "we're still confident the MBA report will be approved in December."
— The real Jon Brodkin (@jbrodkin) November 21, 2018
Of course “approved” doesn’t mean actually released. Insiders at at least one major cable operator tell me ISPs were given an embargoed copy of this report weeks ago, and it does actually include data from the Measuring American Broadband program. But whether the public will receive access to this data isn’t clear. And even if it does, by the time this report is released buried in a larger report, most people will be in a tryptophan-induced holiday coma.
If you’ve been playing along at home, the reason the Pai FCC didn’t want to talk about the program (or release data that might shame its BFFs in the broadband industry) shouldn’t be too hard to ferret out. After all, that data might just contradict the longstanding (and quite obviously false) Pai claim that demolishing most oversight of historically-predatory telecom monopolies magically results in better, faster, cheaper broadband. While Pai’s office can insist they were just engaged in “improved efficiencies,” it should be interesting to see if the emails requested via FOIA (if they’re ever actually released) have a different story to tell.
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