Cybersecurity & Tech

The Coronavirus Pandemic and Network Neutrality Implications

Amy Robinson, Jim Waldo
Tuesday, June 29, 2021, 11:35 AM

Title II classification of broadband would have offered significant consumer protections during the pandemic. However, net neutrality regulations take into account the actions of only internet service providers, which represent just one piece of a larger internet ecosystem.

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The coronavirus pandemic has served as the biggest stress test for the internet to date. The performance of regional networks degraded significantly, especially regarding upload speeds, during a time when an online connection was a true lifeline. But would the 2015 network neutrality regulations have made a difference in consumer experience during the pandemic? Would net neutrality have provided faster neighborhood internet speeds or more consistent pricing? This post examines instances of pricing changes, throttling and traffic prioritization during the coronavirus crisis to answer these questions and zooms out to the larger internet ecosystem beyond just internet service providers (ISP).

A Brief Overview of U.S. Net Neutrality Regulations

In the words of internet industry analyst Larry Downes, “Net neutrality is a basic, but notoriously squishy, principle.” In its purest form, network neutrality stands for the principle that broadband providers should treat all data packets flowing over their networks the exact same. Net neutrality would therefore prohibit an ISP from throttling, blocking or otherwise unfairly discriminating against any internet traffic.

While net neutrality is a relatively simple engineering concept, it has taken on its own meaning in the policy context. The term “net neutrality” has expanded to stand for common carrier regulation. In the United States, the “common carriage” label was first used to regulate railroads and telegraphs in the 19th century. Regulators later applied the common carrier duty to more modern technologies, such as local phone service, through Title II of the Communications Act of 1934. Under Title II, a common carrier must serve all comers, must file a pricing scheme with the Federal Communications Commision (FCC), must provide “just and reasonable” rates, and must not engage in “unjust or unreasonable discrimination” between customers. Through the 1996 Telecommunications Act, Congress modernized the Communications Act of 1934 to include the internet. The drafters of the 1996 Telecommunications Act differentiated between traditional Title II “telecommunications” services, subject to common carrier regulations, and new kinds of Title I “information” services, which would be relatively free of regulations.

As the FCC attempted to apply net neutrality principles, such as no blocking, no throttling, and no paid prioritization, to ISPs, the term “net neutrality” soon became conflated with classifying broadband as a Title II service. This stemmed from three FCC orders that struggled over how to hold ISPs accountable for net neutrality principles, with one FCC order resorting to reclassifying broadband from Title I to Title II to establish sufficient legal authority.

First, the 2010 FCC Order established disclosure rules that required ISPs to disclose pricing, including “monthly prices, usage-based fees, and fees for early termination or additional network services.” Second, the 2015 “Open Internet Order” reclassified broadband as a Title II service to establish bright-line bans on blocking, throttling and paid prioritization. However, these rules contained a vague “reasonable network management” exception. The 2015 order also established enhanced disclosure rules that required ISPs to be more transparent with consumers about hidden fees and the consequences of exceeding data caps, such as additional charges or loss of service for the remainder of the billing cycle. But the 2015 order would effectively be undone through the Trump administration’s 2017 “Restoring Internet Freedom Order” (RIFO). RIFO reclassified broadband as a Title I information service; removed restrictions on blocking, throttling, and paid prioritization; and rolled back the 2015 enhanced disclosure rules. However, the 2010 order’s disclosure requirements remain in place.

Pricing SecurityA Voluntary Pledge Lacks Power

Pricing emerged as one of the most visible problems for households trying to connect to the internet during the pandemic. Families that previously could get by with just a mobile data plan or cellular connection suddenly needed to purchase a more robust broadband subscription, either wired or wireless, so that their children could attend school that had become fully remote. Surging unemployment rates further exacerbated the affordability problem. Unemployment rates peaked in April 2020 at 14.8 percent, a level not seen since data collection started in 1948. As of October 2020, 8 million more Americans had fallen into poverty, and nearly one in six adults with children reported that they were food insecure. These conditions forced some households to choose between food and broadband in helping their children attend school.

On March 13, 2020, FCC Chairman Ajit Pai announced the “Keep Americans Connected” pledge to combat the internet affordability problem. The “Keep Americans Connected” pledge was a nonbinding appeal to private companies that implored signatories not to terminate service to any residential or small business customers because of an inability to pay bills and to waive any late fees incurred due to the pandemic. The original pledge was for 60 days from the announcement, and the FCC extended it until June 30, 2020. Although more than 800 companies signed the voluntary pledge, this was only a temporary solution to an ongoing crisis. The pledge simply paused the collection of bills—it did not absolve them; so customers still faced bills at the end of the pledge. The voluntary pledge also lacked an enforcement mechanism, and some customers reported that signatories did not fulfill the pledge. Chairman Pai even acknowledged that the FCC had received approximately 500 complaints about the program.

Some ISPs continued to honor these consumer protections following the sunset of the pledge. Comcast said it would continue to offer free internet for low-income households until the end of 2020 and waive a portion of the past-due balance for customers unable to pay. Charter offered a month of free service for new small-business customers, which sounds more like a promotional hook than a pandemic consumer protection program, and further offered to work directly with customers on repayment assistance plans. AT&T stated that it would waive data overage fees for home internet service until Sept. 30, 2020.

Title II common carrier classification over ISPs would have given the FCC authority to oversee ISPs’ pricing schemes and rate regulation. This could have resulted in consistent and enforceable pricing policies during the pandemic rather than reliance on a voluntary pledge. Therefore, common carrier classification could have dramatically improved consumer experiences regarding affordability during the crisis as well as after the pandemic subsides.

Throttling and Network MaintenanceThe Power of ISPs

With the quick swell of internet traffic during the pandemic, network operators across the nation rushed to expand their networks’ bandwidth capacity. Insufficient bandwidth can lead to congestion when too many bits are trying to be sent over the network at a given time. When faced with congestion, a network operator can either increase capacity or throttle the internet bandwidth of some customers. Network operators already incorporate substantial amounts of unused capacity, known as headroom, into their networks. The headroom is designed to mitigate intermittent spikes in traffic. Network operators generally increase capacity once they reach a 50 percent average network utilization rate. Smaller ISPs, such as providers in rural areas, might operate on thinner margins. Confronted with high utilization rates, several network operators chose to upgrade their networks’ infrastructure. CenturyLink added new fiber to increase its network capacity after various parts of its infrastructure “ran hot” during the first few weeks of the pandemic. While Comcast commented that its networks were built to handle surges, it too installed additional fiber to absorb traffic increases.

Unfortunately, instead of increasing capacity to ease congestion, some network operators resorted to throttling and intimidation tactics. Journalist Jon Brodkin’s story of Mike, a Cox customer in Gainesville, Florida, illustrated the severity of these tactics.

Mike paid Cox $150 per month for download speeds of 1 gigabits per second (Gbps) and upload speeds of 35 megabits per second (Mbps). Mike paid an additional $50 per month for “unlimited data” since he generally used at least 8 terabytes (TB) of data a month due to scheduled device backups and data sharing on peer-to-peer networks. However, Mike made sure to schedule his heavy usage from 1 a.m. to 8 a.m. in order to minimize congestion on the local network.

Even though Mike’s internet usage had been consistent over the past four years, Cox flagged his account as an excessive user in mid-May 2020. When Mike refused to change his internet activity, Cox decreased the upload speeds for his entire neighborhood from 35 Mbps to 10 Mbps. This was a critical decrease when Mike and most of his neighbors relied on remote work and schooling. Cox confirmed that it had indeed imposed neighborhood-wide slowdowns. A Cox webpage from March 2020 stated that the gigabit plan, which promises 35 Mbps upload speeds, would be limited to 10 Mbps in some areas “to support consistent service across customers during periods of sustained increased internet usage.” A Reddit thread from May 2020 revealed that Mike was far from the only customer who experienced threats and slowdowns.

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Rather than upgrading its infrastructure, Cox relied on oversubscribed nodes, resulting in neighborhood-level congestion. A Cox representative said that they “keep a close eye at the individual node level” to make adjustments, such as “splitting nodes, pulling additional fiber, equipment swaps and/or core network changes” to avoid congestion thresholds. However, it does not seem as though Cox engaged in any of those measures in Mike’s case. Similarly, Reddit user r/brainwashednomore shared that a Cox tech representative admitted that the neighborhood node was overloaded because of increased traffic related to the pandemic, but it would cost several hundred thousand dollars to split the node and “the likelihood it would happen soon was very low.” The tech representative’s advice was to just downgrade from the gigabit package to the 150 Mbps package to match his actual service.

The FCC’s reclassification of wireline and mobile broadband as a Title II service in 2015 would have likely changed the outcome between Mike and Cox. The “Open Internet Order” applied common carrier classification for these information services and established bright-line bans on blocking, throttling and paid prioritization. The 2015 order’s enhanced disclosure rules, which required ISPs to be more transparent about any consequences from exceeding data caps, likely would have protected Mike from Cox’s unilateral actions. But the order’s “reasonable network management” provision would have likely permitted Cox’s throttling actions. While the FCC’s 2010 disclosure rules still remain in place, they do not require this greater transparency regarding data cap consequences.

The coronavirus pandemic raises the question of whether these data caps are even necessary in the first place. Data caps are generally part of a tiered pricing structure. Supporters of such billing models suggest that data caps can help ISPs maintain and expand their networks. Charging high bandwidth users additional fees can help fund additional capacity as well as keep internet congestion in check by limiting demand. However, opponents of data caps point to the decreasing costs of network management and argue that since ISP networks have built in the capacity to handle peak hour traffic, their networks should handle high data use by all users. Some ISPs’ temporary removal of data caps during the pandemic further supports this argument. When internet traffic was at record-breaking highs, ISPs were able to stop tiered pricing. The pandemic revealed that ISPs’ use of data caps during non-crisis times served a business purpose rather than a network management one.

Traffic PrioritizationThe Informal Power of Regulators

Another key tenet of net neutrality is that ISPs should not prioritize any content but instead treat all data packets the same. Accordingly, Comcast couldn’t deliver content from its own streaming service NBCUniversal faster than Netflix videos or charge companies extra fees to get in the fast lane. However, the pandemic seems to support the argument for traffic prioritization. After all, with strained capacity, why should ISPs have to deliver Netflix or porn at the same speeds as telehealth services, government unemployment websites and online classes?

European Commissioner Thierry Breton made the appeal for traffic prioritization by imploring video streaming services to switch to standard definition in an effort to keep the networks open for essential services. On March 18, Breton tweeted, “Important phone conversation with @ReedHastings, CEO of @Netflix. […] Teleworking and streaming help a lot [to beat #COVID19] but infrastructure might be in strain. To secure Internet access for all, let’s #SwitchToStandard definition when HD is not necessary.” Accounting for 70 percent of all global network traffic, video streaming has a significant impact on a network’s congestion. In addition, the quality level significantly impacts the needed bandwidth. For instance, Netflix high definition (HD) videos use 3 gigabytes (GB) of data per hour whereas standard definition (SD) videos use only 1 GB per hour. SD’s decrease in data-intensive streaming therefore suggests that Breton’s appeal could reasonably reduce network congestion.

Faced with public pressure, video streaming companies soon changed their streaming quality. Netflix became the first platform to commit to reducing streaming quality, by decreasing the video bit rate by a quarter, for 30 days in the United Kingdom and European Union. Netflix commented that the reduced picture quality would reduce Netflix data consumption by 25 percent. YouTube followed suit by defaulting to SD video in the EU and then announcing that it would change the default globally. While users could still manually switch back to HD, some Android and iOS users reported they were restricted to SD quality and could not change the setting. Disney+, Apple, and Amazon also committed to throttling streaming quality across Europe. In fact, Disney+ even went a step further and delayed the launch of its service in France from March 24 to April 7. Despite record levels of network traffic in the U.S., YouTube was the only streaming service that changed streaming quality there.

Net neutrality regulations focus on the intermediaries—the ISPs carrying the content from one place to another. Yet net neutrality regulations notably do not address the other players that can impact traffic prioritization—regulators and edge providers. Breton’s appeal to streaming companies demonstrates the immense, informal power that policymakers have over industry even in regions with net neutrality protections. Some journalists and advocates criticized the unchecked power of one EU commissioner being able to reduce the quality of paid-for streaming services with very little scrutiny. Prominent MIT computer scientist and internet pioneer David Clark criticized the pressure from the EU Commission and claimed that the reduction in quality was unnecessary. Clark stated, “That just tells me they don’t understand how the Internet works.” Clark explained that the internet can’t reach a mythical peak because internet providers are constantly providing capacity. In addition, he explained that a streaming service like Netflix automatically down-codes from HD to SD if it encounters congestion. Clark concluded, “Unless your goal was to preferentially downgrade entertainment television to make sure something important was getting through, just let the system run because it self adapts. The answer is there is a lot of ability in the system to absorb demand shock.” This statement underscores how regulators can circumvent net neutrality protections to prioritize certain traffic.

Net neutrality opponents have suggested the incident represented just another example of regulators becoming too ensnared in the business of private networks and content providers. However, this argument, in many ways, is a red herring in the net neutrality debate—the EU Commission’s appeal to streaming services occurred outside the regulatory realm. After all, FCC Chairman Pai could have made a similar appeal to video streaming services in the U.S.

If anything, this incident demonstrates why neither regulators nor ISPs should be in the general position of making content decisions for end users and underscores the very importance of net neutrality. Effective traffic prioritization is difficult to execute with the variety of uses online services provide. Zoom is used for both remote work and school as well as socializing. Similarly, Netflix and YouTube are certainly used for entertainment, but they are also used for important educational purposes. Therefore, EU policymakers’ appeal to Netflix, YouTube, Disney+, and Hulu was both too broad and too narrow in scope. Slowing down all YouTube videos would result in the slowdown of important educational content. But EU regulators failed to focus on other mainstream video services that account for a significant percentage of internet traffic, such as major porn websites. It is difficult to find recent and reliable numbers, but one 2012 study estimated that 30 percent of all data transferred across the internet is porn, which would be six times larger than Hulu’s internet traffic. PornHub’s 2019 annual report stated that it received more than 80,000 visits every minute. If EU regulators genuinely wanted to ease network congestion without fear of degrading possible educational content, then they should have reached out to pornographic sites as well.

Looking Beyond ISPsA Larger Internet Ecosystem

Edge providers have also been outside the purview of net neutrality regulations. Edge providers, such as video streaming and social media companies, felt the strain of increased traffic during the pandemic, with Facebook’s chief executive Mark Zuckerberg saying, “We’re just trying to keep the lights on over here.” Phone calls over Facebook’s apps more than doubled, and messaging increased by more than 50 percent in many countries. In a March 2020 blog post, Facebook stated, “The usage growth from Covid-19 is unprecedented across the industry, and we are experiencing new records in usage almost every day.” Similar to the announcements of other streaming services, Facebook announced it would reduce bit rates for Facebook and Instagram videos in certain regions. Echoing CNN’s struggle to cope with surging demand on 9/11, Facebook explained that its services could withstand spikes during events like the Olympics or New Year’s Eve, but they have plenty of time to increase capacity in advance of those events.

Video game and console companies also changed their operations to account for surging traffic. Similar to video streaming, video games account for large amounts of internet traffic, especially when an update is released. A software update for a video game can amount to the internet traffic equivalent of 30,000 webpages. Put another way, the recent “Call of Duty: Warzone” game was an 80-GB download, which is the equivalent of dozens of Netflix movies. In addition to large downloads, there was also a spike in the number of gamers. One report found that gaming traffic increased by 400 percent in March 2020. Accordingly, Microsoft, manufacturer of the Xbox, asked gaming companies to introduce online updates and new releases at low-traffic times, such as overnight on Monday through Thursday, in order to avoid network congestion. Similarly, content delivery network (CDN) Akamai reported that it would throttle the speeds of gaming software downloads at peak times in bottleneck regions. Of the top 24 video game companies, 23 rely on Akamai to deliver content closer to users to reduce latency. The changes resulted in gamers reporting sluggish download speeds of 1 Mbps and download times of 40 hours.

Title II classification of broadband undeniably offers significant consumer protections. Notably, the 2015 Open Internet Order would have likely prevented an ISP from throttling the internet speeds of an entire neighborhood to punish one user, and it also would have empowered the FCC to oversee consistent pricing schemes and debt forgiveness. However, net neutrality regulations take into account the actions of only ISPs, and ISPs represent just one piece of a larger internet ecosystem. Net neutrality does not address the actions of regulators and edge providers to prioritize some content over others. In many ways, the fixation on the net neutrality debate has blinded the public to the internet’s joints and junctions where congestion actually manifests. Not all degradation of internet performance stems from ISPs. Instead, congestion occurs at internet exchanges, outdated home routers, and individual website capacity. By broadening the conversation to include the larger internet ecosystem, more emphasis can be placed on creative solutions to improve internet performance, such as increasing the amount of cached content near end users or improving the capacity of government websites. The coronavirus crisis provides an opportunity to reflect on the strengths of communications networks and begin a greater, bipartisan conversation on how to bolster each individual network as well the connections between them.

Amy Robinson is a JD/MPP candidate at Harvard Law School and Harvard Kennedy School. She received her BA in English from Harvard University in 2015. Previously, Amy worked as the Communications Manager at the Schools, Health & Libraries Broadband (SHLB) Coalition, an advocacy nonprofit that helps community anchor institutions secure affordable broadband.
Jim Waldo is a professor of the practice of computer science at Harvard, where he is also a professor of technology policy at the Harvard Kennedy School and Chief Technology Officer for the school of engineering. His main areas of study are technology policy, cybersecurity, and distributed systems. Prior to joining Harvard, he was a software engineer in industry for over 30 years.

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