Nearly two years have passed since the Federal Communications Commission reported on whether broadband customers are getting the Internet speeds they pay for.
In 2011, the Obama-era FCC began measuring broadband speeds in nearly 7,000 consumer homes as part of the then-new Measuring Broadband America program. Each year from 2011 to 2016, the FCC released an annual report comparing the actual speeds customers received to the advertised speeds customers were promised by Comcast, Time Warner Cable, Verizon, AT&T, and other large ISPs.
But the FCC hasn't released any new Measuring Broadband America reports since Republican Ajit Pai became the commission chairman in January 2017. Pai's first year as chair was the first time the FCC failed to issue a new Measuring Broadband America report since the program started—though the FCC could release a new report before his second year as chair is complete.
For more than three months, Ars has been trying to find out whether the FCC is still analyzing Measuring Broadband America data and whether the FCC plans to release any more measurement reports. SamKnows, the measurement company used by the FCC for this program, told Ars that Measuring Broadband America is still active and that a new report is forthcoming, hopefully next month. But whether the report is released is up to the FCC, and Chairman Pai's public relations office has ignored our questions about the program.
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 We had argued that expedited processing was warranted because the broadband measuring data is out of date, depriving American consumers of crucial information when they purchase broadband access.
FCC refuses to provide new deadline
After denying our request for expedited processing, the FCC repeatedly extended its own deadlines for providing documents to us. FCC staff told us they needed more time because they were still "reviewing documents to determine if they are responsive to your request."
The FCC, which has an annual budget of $450 million, asked us on October 4 to narrow the scope of our public-records request, telling us that searching for the documents would be "a pretty significant burden and would take a long time to process." We agreed to narrow the request to exclude testing data and to include only emails that relate directly to whether the FCC will release future versions of the Measuring Broadband America report and to whether testing has been discontinued.
In response, the FCC's Office of General Counsel told us on October 10 that it would search the chairman's office emails "for records mentioning the Measuring Broadband America report since 2016" and "provide you with any records we locate, consistent with the FoIA statute."
Despite that, the FCC didn't meet its new, self-imposed deadline of October 25. On that date, an FCC staffer told Ars via email that the FCC was "unable to meet our due date" and that "at this time, we do not know how long this process will take and cannot give you a due date."
We contacted the FCC press office and the FCC official handling our records request again on Monday of last week, but we received no replies.
What SamKnows knows
SamKnows CEO Alex Salter said he doesn't know why a report wasn't released in 2017. "It follows a process, and sometimes it takes longer to follow that process," Salter told Ars. "There's no particular reason that I could identify."
But a new Measuring Broadband America report is in the final stages and awaiting FCC approval, he said. Salter said he anticipates a release in December. "Obviously we don't control that because it has to go through a whole series of approvals," Salter said.
SamKnows equipment is still collecting data for the project in 6,000 to 10,000 homes, Salter said, noting that the number fluctuates. SamKnows is looking for more volunteer testers for the next phase of Measuring Broadband America, he said. People who are interested in participating can sign up at this link.
Testing has become more sophisticated during the program's eight-year history, Salter said. Today, it's measuring the 12 ISPs in the program across 65 speed tiers ranging from less than 1Mbps to 1Gbps, he said. A Measuring Broadband America program that assists other research institutions is also still active.
In summary, "the project is ongoing; it's still a very important, very high-profile program," Salter said. "We're gathering more data than ever before. The report is due imminently, and not just that, we're actively recruiting so we can produce the next report as well… it continues to be an important piece of work that we're extremely proud of."
Ex-FCC officials blast Pais delay
Despite the program's ongoing measurements, Pai's failure to release a report in 2017 raises the question of whether his FCC only releases reports when it likes the results. If Measuring Broadband America tests showed a marked improvement in 2017 or 2018, Pai would likely want to publicize that because he could claim that improved speeds were caused by his deregulatory agenda.
"I can't think of a single legitimate explanation for why the FCC hasn't released a new Measuring Broadband America report in the nearly two years since Ajit Pai has been the chair," Gigi Sohn, who served as counselor to then-FCC Chairman Tom Wheeler from 2013 to 2016, told Ars.
Pai has repeatedly claimed that he would make the FCC more transparent with the public and ensure that its decisions are grounded in real-world evidence. Yet he still hasn't provided updated speed data from Measuring Broadband America, the only program in which the FCC sets up measuring equipment in customers' homes to test actual broadband speeds.
Wheeler, who left the FCC when President Trump was inaugurated, told Ars that "it is good to know the contractor on the project continues to collect the data," but he expressed concern about the lack of a new report under Pai. "Why hasn't the data been made public?" Wheeler asked.
Unlike the FCC-verified statistics in Measuring Broadband America, the FCC's other speed data is generally based on self reports filed by ISPs, which often aren't accurate. ISPs have resisted FCC efforts to collect more accurate data about broadband deployment, saying it would be too costly to report the exact street addresses where they offer service.
There's no Congressional requirement that the FCC continue the Measuring Broadband America program. Still, the Measuring Broadband America report "is a critical tool to inform policymakers and the American people about the quality and reliability of their broadband service," Sohn said. "Coupled with broadband maps that cannot pinpoint with any accuracy where broadband is deployed and at what price, the lack of information about performance makes intelligent, targeted, and effective policymaking on broadband competition, deployment, and accessibility nearly impossible."
Measuring Broadband America grew out of a recommendation in the National Broadband Plan produced by the FCC in 2010. Blair Levin, a former FCC official who oversaw development of the National Broadband Plan, said there could be many potential reasons for a delay. "I don't want to speculate on why the FCC has not produced the data, as I can think of many potential reasons and don't know enough to say what is most likely to be true," Levin told Ars.
Despite that, Levin was troubled by the FCC's silence on the program's status. "I do find both the lack of information and the reluctance to be transparent at odds with the early rhetoric of Chairman Pai about the importance of economically grounded decision-making and improving transparency around FCC decision-making," Levin said. "There is always a danger that a government agency moves forward with a preset agenda and uses cherry-picked data to try to justify the decision. The fact that the FCC is not reporting, on a regular basis, the data is evidence—not conclusive but evidence nonetheless—that the FCC could be moving away from being a data-driven expert agency."
Pai's FCC has faced several lawsuits that accuse the agency of failing to comply with public records requests.
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