FCC seemingly forgot about a net neutrality complaint filed against Verizon

As the Federal Communications Commission prepares to deregulate broadband providers and eliminate or weaken net neutrality rules, the commission has not yet made a ruling on a net neutrality complaint filed against Verizon more than a year ago.

There have been tens of thousands of "informal" net neutrality complaints filed since the rules took effect in 2015, but there has been only one formal complaint. Informal complaints can be filed for free but won't necessarily result in a ruling; formal complaints require a filing fee of $225 and kick off a court-like proceeding in which the parties appear before the FCC and file numerous documents to address legal issues.

The only formal net neutrality complaint was filed in July 2016 by a Verizon Wireless customer named Alex Nguyen, who alleged that the carrier has violated the rules with numerous actions that blocked third-party devices and applications from being used on its network. The complaint has its own docket, and Verizon has made several responses to the allegations, yet it has been so little-noticed that the people who wrote the FCC's proposal to repeal net neutrality rules seemingly forgot that it existed.

FCC Chairman Ajit Pai, who was a Verizon lawyer from 2001 to 2003, released a draft proposal to overturn net neutrality rules in April. In making the case that the current net neutrality rules aren't needed, the proposal said that "no formal complaints have been filed under them." But that wasn't true, and the next version of Pai's anti-net neutrality proposal corrected the mistake, saying that "only one formal complaint has been filed under them to date."

Extensive research

Nguyen, who works in law enforcement, covers a lot of ground in his complaint.

"Nguyen is a recent college graduate living in Santa Clara, California," The Verge wrote in an extensive article about Nguyen's complaint yesterday. "And for much of 2015, he spent his time digging through years of Verizon's public statements and actions, assembling more than 300 citations into a 112-page document that could well have been his master's thesis. (In fact, he studied computer science.) The document catalogs a dozen questionable actions Verizon has taken since 2012, assembling a body of evidence in an attempt to prove that the carrier has violated a number of open Internet protections."

"Verizon and I made our cases," Nguyen told The Verge. "It looks as though [the FCC's Enforcement Bureau] staff any day now could make a decision."

We asked the FCC about the status of the case yesterday and haven't received an answer.

Nguyen's complaint alleges violations of net neutrality rules and the open access rules applied to C Block spectrum owned by Verizon. Here is a sampling of his allegations, some of which cover well-known events:

• Verizon Blocked Asus Nexus 7 Tablets for 22 Weeks.
• Verizon Blocked Third-Party Apple iPhone 6 and iPhone 6 Plus Devices for 47 Weeks.
• Verizon Blocked Third-Party Motorola Nexus 6 Smartphones for 29 Weeks.
• Verizon imposes discriminatory pricing on bringing your own device.
• Verizon Disables (or Compels Edge Providers to Disable) FM Radio Capabilities.
• Verizon Disables (or Compels Apple to Disable) Embedded Apple SIMs.
• Verizon Disables Built-in Tethering Features and Charges an Additional $20.00/Month to Re-Enable Them.
• Verizon Compelled Customers to Use FamilyBase and Blocked Samsung from Enabling Blocking Mode.
• Verizon Compelled Samsung to Preload Isis Wallet and Blocked Pay with PayPal.
• Verizon Compelled Samsung to Preload Verizon Cloud and Blocked Samsung from Preloading Microsoft OneDrive.
• Verizon Compelled Samsung to Preload Android Pay and Blocked Samsung Pay.
• To compel customers to use Isis Wallet, a Verizon-backed mobile payment application, the carrier blocked Google Wallet, a competing application.
• Verizon Compelled Samsung to Preload Caller Name ID and Blocked Samsung from Integrating Whitepages.
• Verizon misleads and deceives customers by stating third-party devices that are compatible with its network are not.
• Verizon offers vague and specious allegations (instead of specific explanations) for denying network access.

Verizon's responses

Verizon denied all of the allegations in a lengthy response to the complaint in September 2016 and further responses to interrogatories from Nguyen in April of this year. Generally, Verizon says that it worked to connect third-party devices to its network but that there were delays in some cases due to circumstances the carrier didn't control.

Regarding the iPhone 6, for example, Verizon said that initially, "iPhone 6 and iPhone 6 Plus devices that were purchased from sources other than Verizon could not be identified on the Verizon network—even with the insertion of a Verizon SIM card." That's because the Verizon network requires an International Mobile Equipment Identity (IMEI) number, which Apple initially did not provide to Verizon for third-party iPhones, the carrier said.

Verizon worked with Apple to obtain the necessary IMEI ranges, and, once Apple provided them, "customers then could use third-party iPhone 6 and iPhone 6 Plus devices on the Verizon network with the insertion of a Verizon SIM card," Verizon said. "However, Verizon did not attempt to unreasonably block or delay certification of third-party Apple devices."

Verizon denied that it imposes discriminatory pricing on customers who bring their own device. Among other things, Verizon said it provided promotional discounts to customers who brought their own smartphones as long as the devices were "certified" to be used on the Verizon network, but that "Verizon was unable to provide the discount to month-to-month customers who attempted to use third-party devices that were not certified for use on the Verizon network and/or that Verizon could not identify."

On tethering, Verizon noted that it settled allegations with the FCC's Enforcement Bureau in 2012 and that it doesn't charge for tethering on its newest data plans. Verizon does charge extra for tethering on older plans, "[b]ut there is no prohibition on carriers charging customers for tethering services," Verizon said.

As for payment applications, Verizon denied that it blocked Google Wallet, saying that "Google Wallet differed from other applications and there were technical issues associated with using it on devices on the Verizon network." The company also defended its "device certification process," which generally takes four to six weeks to certify third-party devices for use on the network.

In some cases when a device doesn't comply with Verizon's published technical standards, "the manufacturers elect of their own accord to delay pursuing the necessary fixes to achieve compliance, which extends the certification process, or may elect to stop pursuing certification altogether," Verizon said.

While Verizon does not support the Apple SIM, the company said it "provides Verizon-specific SIM cards to allow devices to connect securely to the Verizon Wireless network and to ensure proper functionality on that network" and that FCC "rules permit this approach."

Verizon said it does not block FM radio, but it does not require its handset suppliers to provide an FM radio chip in their devices. Verizon does sell a few devices with FM radio capability, and "Verizon will continue to support the sale of devices from manufacturers that choose to include an FM chip," the carrier said.

Nguyen argued that while Verizon doesn't prevent phone makers from providing FM radio chips, "Verizon has compelled handset suppliers to disable FM radio chips." He pointed to a 2012 survey that found 21 percent of AT&T and T-Mobile devices support radio while only two percent of Verizon devices do so.

FCC enforcement is lax

Pai has said the FCC will continue enforcing net neutrality rules as long as they are on the books, but the commission has become more lenient under his leadership. The FCC under former Chairman Tom Wheeler accused AT&T and Verizon Wireless of violating net neutrality rules by charging for data cap exemptions while exempting the carriers' own services from the data caps. But the FCC rescinded that finding shortly after Pai took over the chairmanship this year.

Nguyen urged the FCC to act more quickly on his complaint in a filing last month. He wrote:

[E]ven with an extensive record of Verizon violating the C Block Rules, the Open Internet Rules, and the Communications Act (by disabling Apple SIMs, imposing discriminatory pricing on third-party devices, blocking Samsung from preloading applications that compete against Verizon-backed applications, etc.) and making false statements (claiming Google didn't have the ability to deliver software to Google devices even though Google obviously did, claiming Verizon didn't block FM radio features even though Verizon pushed software that "purposefully blocks" them, claiming technical reasons for blocking Samsung Pay even though Verizon blocked the application for commercial reasons, etc.), the Commission has yet to take enforcement action.

While the Commission delays ruling on this matter, Verizon continues to disable Apple SIMs and outright block applications like Samsung Cloud. Given Verizon's ongoing harm to innovation and competition, I pray the Commission will fulfill its commitment and statutory obligation to expeditiously take enforcement action and protect customers' ability to use the devices and applications of their choice and edge providers' ability to make the devices and applications of their choice available to customers.

Obviously, Nguyen has not been swayed by Verizon's denials of his allegations.

"With Verizon it's always, 'We're blocking these features as a fraud prevention tactic,' or 'It didn't pass our certification requirement that we're not gonna talk about,' or 'It didn't pass these requirements that were never specified,'" he told The Verge. "There's always this pattern of deception with Verizon."