While the public successfully forced the FCC to adopt net neutrality rules last year, one glaring omission may be coming back to haunt consumers and the commission alike. The FCC's open Internet rules
contain three "bright-line" restrictions: no blocking, no throttling apps or traffic, and no "paid prioritization" of apps or content. Unlike neutrality rules in Japan, The Netherlands, Slovenia, and Chile however, the FCC refused to outright ban zero rating (exempting content from usage caps), instead opting to determine on a "case-by-case basis" if a carrier is violating the "general conduct" portion of the rules.
As we worried last year
, this opened the door to ISPs trampling all over net neutrality -- just so long as they were marginally clever about it
. And that's exactly what has happened, with AT&T, Verizon, Comcast and T-Mobile all running rough shod over net neutrality with varying degrees of obnoxiousness and success.
T-Mobile is now zero rating all the major music and video services, while throttling every video service that touches its network to 1.5 Mbps by default (and lying about it
). AT&T has been charging companies for cap-exempt status for a few years now under its controversial "Sponsored Data" program, which tilts the playing field against smaller competitors and startups
that may not be able to afford AT&T's toll. Verizon recently followed suit with "Free Bee" sponsored data
, which lets companies pay Verizon to have their app, video, or entire website or service tagged with premiere, cap-exempt status.
In each example, carriers have injected themselves into the middle of the content stream for marketing or direct financial benefit, in the process completely dismantling the level playing field enjoyed by smaller companies, startups and non-profits. These smaller operators may not be able to pay to play, and in some instances won't even realize they're being discriminated against. And because these services are pitched as "free shipping" or "a 1-800 number for data," some consumers are applauding as the open Internet gets dismantled piecemeal, oblivious to the fact that usage caps are arbitrary
constructs to begin with.
And while AT&T, Verizon and T-Mobile are at least being marginally subtle about it, Comcast simply declared "fuck it" -- first imposing completely unnecessary
usage caps on millions of its broadband customers to hinder Netflix, then making its own
streaming video service cap exempt
. When pressed, Comcast's bullshit department proudly declared it wasn't violating net neutrality -- because its streaming video service runs entirely over "Comcast's managed network to the home." So yes, as predicted
, net neutrality is crumbling under the weight of rule loopholes and immaculately-crafted bullshit.
So what is the FCC doing about it? Two years ago, FCC boss Tom Wheeler said the agency would watch AT&T's Sponsored Data carefully
, but did nothing. More recently, Wheeler applauded T-Mobile's zero rating practices for being "highly innovative
" and "pro-competition." Once complaints mounted, the FCC was forced to "act" in the form of a letter sent to companies late last year, asking for more detail on these programs. The FCC has been quick to repeatedly make clear this is just an "information exercise" and not a formal investigation
Wheeler pointed out that the meetings the FCC has been holding with those companies--Comcast, AT&T, T-Mobile and likely Verizon--were at the bureau level, which he said was significant. "I am not at these meetings," he said. "Nobody from the office of the chairman is in these meetings. They're gathering information and we'll see what happens from there."
It's not really clear just how much data the FCC needs to collect. AT&T's Sponsored Data and Comcast's (ab)use of usage caps are obviously problematic, and have been in play for several years. The real problem for the FCC isn't information, it's limited time and shaky legal footing. One, the upcoming elections could result in a President that has no idea
what net neutrality is, who immediately sets forth replacing Wheeler and dismantling the net neutrality rules. Two, the FCC is still waiting for the outcome of the mass-industry lawsuits
against the rules, which could leave the FCC without a leg to stand on.
I asked Public Knowledge lawyer Harold Feld, who probably spends more time submerged in FCC policy than anyone, what he thought the next course of action would be at an FCC boxed in by the courts and politics. He suggested that the agency might follow the course it set on the interconnection front, which began with a few pointed inquiries and ended with incumbent providers magically ceasing
shenanigans for fear of FCC enforcement. Feld posits that something similar could be applied to zero rating, finally letting companies know what is or what isn't acceptable:
The FCC has already gotten 12,000+ complaints about Comcast. It would not be hard to bump them to the top of the list. But Wheeler may not want to start an investigation when he only has a limited time left in office and a future FCC might drop the matter. Instead, Wheeler may push for some kind of Policy Statement or Enforcement Guidance. Something that would provide notice industry wide about what the FCC would consider "red lines" on data caps.
But Wheeler has been very clear that he is not promising to do anything but check under the hood. I certainly would not expect the FCC to do anything until the D.C. Circuit decides -- especially in light of the possibility that the FCC could win on wireline and lose on wireless. If the D.C. Circuit decides in the late spring or early summer, that will not leave much time for the FCC to take any kind of official action.
In other words? If you're expecting any hard enforcement from the FCC when it comes to caps or zero rating, you shouldn't hold your breath. The agency is currently boxed in by both lawsuits and the upcoming election, but had already made it clear it thinks zero rating and usage caps are just "creative pricing." Should the rules remain fully intact post lawsuit and election, political pressure might
force the FCC to take action against Comcast's less-than-subtle abuse of usage caps, but things aren't looking good if you're part of the vast minority that realizes the horrible precedent zero rating represents.