As net neutrality dies, one man wants to make Verizon pay for its sins
Imagine if you took every single gripe you've had with Verizon over the past five years — the time it blocked Nexus 7 tablets for five months; the time it forced you to pay $20 per month for tethering; the time it tried to make you use a mobile wallet app called "ISIS" — and finally put your foot down. For a year, you spend free moments holed up in library stacks, speaking with experts, and researching and writing a sprawling legal complaint about the company's many, many misdeeds. And then you file it all with the FCC, hoping to get some payback.
That's exactly what Alex Nguyen did. And one day very soon, Verizon may have to answer for it.
Nguyen is a recent college graduate living in Santa Clara, California. 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.
“Carriers have been doing this forever. Verizon, in particular, has been one of most brazen."
Finally, when he wrapped up in the middle of last year, Nguyen paid a $225 filing fee and handed his complaint over to the FCC. It would end up being the only formal complaint filed under the net neutrality rules.
The complaint kicked off a back-and-forth process of objections, evidence discovery, and failed mediation to reach a resolution. Along the way, there have been some hilariously petty digressions, which Nguyen, untrained in the law, has handled patiently. At one point, Verizon objected to his definition of “Verizon” and proposed its own definition. Nguyen then objected to Verizon's objection, saying that Verizon “copied my definition almost verbatim,” which, in fact, it had.
Now one year after Nguyen's initial filing date, all the arguing is over, and the case is the in hands of the commission's Enforcement Bureau to either shoot down, deliver a fine, or demand Verizon make some changes.
"Verizon and I made our cases," Nguyen said. "It looks as though [the FCC's Enforcement Bureau] staff any day now could make a decision."
Nguyen's complaints are comprehensive and wide-ranging. He points to Verizon temporarily blocking the Nexus 7, third-party iPhone 6s, and third-party Nexus 6s. He brings up Verizon charging people more for bringing their own phones to the network. He argues Verizon compelled phone providers to disable FM radios. He also mentions Verizon blocking PayPal, OneDrive, Samsung Pay, and other built-in apps.
Nguyen appears to have used more than two dozen phones and tablets on Verizon
Altogether, he alleges, Verizon has violated openness rules in six different ways, ranging from discriminatory pricing, to limiting customer choice, to simply lying about its network.
"Carriers have been doing this forever," Nguyen said. "Verizon, in particular, has been one of most brazen."
As an example, Nguyen points to Verizon's handling of the Apple SIM — a SIM card that's designed to let iPad owners change their phone carrier with the press of a button. Sprint and T-Mobile let the SIM card work as intended. But AT&T and Verizon didn't. Asked why, AT&T plainly said it didn't want to. "It's just simply the way we've chosen to do it," a spokesperson told Recode. But Verizon offered a series of explanations that Nguyen doesn't find all that convincing.
"With Verizon it's always, 'We're blocking these features as a broad 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 said. "There's always this pattern of deception with Verizon.”
Though Nguyen isn't a lawyer — he currently works in law enforcement — he speaks with the care and precision of one, unwilling to say anything that might be used against him in the proceeding. “I think they're gonna make a case based on the record and the facts,” he said at one point, when asked how he feels about a commission intent on dismantling net neutrality being the one to rule on his complaint.
The FCC missed Nguyen's complaint when writing up its proposal to kill net neutrality
But Nguyen is freer when talking about why he went through all of this. He loves gadgets, he says, and wants to be able to use them to their fullest extent. In the complaint, Nguyen appears to have used over two dozen phones and tablets on Verizon's network over the past several years. In another one of those petty retorts, however, he refused to confirm exactly which phones he used after being asked by Verizon, saying that the company ought to just look through its own records.
“I'm a gadget freak, so I always have lots of stuff, even across multiple carriers besides Verizon,” Nguyen said. Nguyen was originally a Verizon customer through his parents. But eventually he got his own line, despite his problems with the company. “[I'm buying] devices on multiple carriers because I like to tinker.”
Though Nguyen has been arguing with Verizon for over a year at this point, his complaint has gone largely unnoticed. Even officials at the FCC may not have known about it. In April, when the commission released the first draft of its proposal to strike down its latest net neutrality rules, the text said that "since these rules were formally codified in 2010, no formal complaints have been filed under them."
It turns out, there was one, and only one: Nguyen's. And the commission had to correct for that in the finalized proposal it released a month later. The Verge caught the error and pointed it out in an article the next day. Nguyen, who was still voraciously scanning news about open internet proceedings, took notice.
"I've been so busy that, until I read your article, I was unaware that the [FCC's proposal] referenced my complaint," he wrote me in an email the next month. "The error in the draft NPRM released last month raises the question of whether staff forgot to double-check the list of pending formal complaints because they were under pressure to 'focus' on the current chairman's agenda."
In the proposal, the FCC questions whether open internet rules are even needed since only a single complaint has been filed under them. "Does the lack of formal complaints indicate that dedicated, formal enforcement procedures are unwarranted?" the proposal asks.
Well over 35,000 informal complaints have been filed — but the FCC overlooks them
But that phrasing wiggles around something important. The FCC also has an informal complaint system, which doesn't require the months of leg work that can go into a filing like Nguyen's. There's a big difference between the two of them: informal complaints may end with something as simple as an emailed response from the FCC or the ISP, trying to offer help or claiming that nothing's wrong. Formal complaints, on the other hand, are “similar to court proceedings” and are usually argued by lawyers, according to the FCC. And critically, they end with a ruling from the commission's Enforcement Bureau.
In addition to requiring far less work, the informal complaint system doesn't require filers to pay a fee, and it's received well over 35,000 complaints so far. In fact, the first informal complaint was filed just a week after the net neutrality rules went into place in June 2015. It was filed by Barry Bahrami, CEO of Commercial Network Services, who said he was being charged unfair rates by Time Warner Cable. But, he says now, it didn't go very well.
"My experience with the whole process was beyond disappointing," Bahrami says. "They really didn't do anything but open a ticket system for us to keep taking stabs at each other."
"I would have been fighting an uphill battle."
Bahrami says the problem was never resolved. And though he could have elevated his complaint to the formal level, like Nguyen did, he decided against it — in part because of the money and work that'd be needed. "It wouldn't have been the money, for starters," Bahrami said. "I would have been fighting an uphill battle."
Nguyen says his filing, even if it's the only one, is proof that open internet rules and a complaint process are much needed. "I think the record I've shown in the complaint indicates that yes, [carriers will do bad things]," he said.
Nguyen's filing was started long before the election and the seemingly imminent repeal of net neutrality, but it's come to feel like a last-ditch effort to get something out of the policy before it's gone — to finally see an internet provider answer for its apparent misdeeds. But the longer the commission goes without ruling on Nguyen's complaint, the bigger the risk that net neutrality will be over before it happens.
If that happens, Nguyen has a plan to keep his fight alive. It relies on something called the C Block rules. Verizon is bound to a secondary set of openness rules that it had to accept in order to license a certain slice of wireless spectrum. Because of that, Verizon could still be on the hook for a lot of his complaints, even if the net neutrality order goes down.
Verizon is bound to openness rules beyond net neutrality
Those rules state that any carrier using that spectrum "shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice." Since the majority of Nguyen's claims involve Verizon blocking access to devices and apps, the FCC should still have to rule on them.
Matt Wood, policy director at the communication advocacy group Free Press, said Nguyen's complaint “looked more careful than one might have expected for an average person” and that Nguyen's use of both the net neutrality rules and the C Block rules is “certainly wise [given] where we find ourselves right now.”
Verizon has denied all of Nguyen's claims. "Mr. Nugyen (sic) is mistaken,” the company wrote in an email to The Verge. “His complaint misstates the facts and misinterprets the law. Verizon is committed to an open internet and complies with the FCC's transparency and access rules."
The commission is now months past its self-imposed deadline for ruling on Nguyen's complaint. Nguyen filed a follow-up note in July urging the enforcement bureau to rule soon, but it still remains unclear when a final decision will come down. The FCC declined to comment.
Net neutrality is months away from being reversed
It's easy to see why the commission might be dallying on this. The 2015 Open Internet Order is likely to be shot down in the next few months, which would change the facts of this proceeding. And while Verizon may have agreed to these additional openness rules, they're restrictions that current FCC leadership likely isn't a huge fan of. If the commission wants to let Verizon off the hook, waiting ought to make that easier.
Nguyen says he's not that worried about his complaint being delayed for political reasons. But he recognizes that it's become even more important now that the net neutrality rules are almost gone. He still hopes for his case to prove "that these things actually do violate the open internet rules." And if he forces Verizon to make some changes, too, then all the better.