The FCC's unwillingness
to clearly ban zero rating as part of the net neutrality rules is starting to bite the agency -- and consumers -- squarely on the ass. Zero rating -- or the practice of letting some
content bypass an ISPs' usage caps -- is seen by many to be a major anti-competitive problem
, given the act of giving some companies cap exempt status puts everybody else at a disadvantage. That's why Chile, Norway, Netherlands, Finland, Iceland, Estonia, Latvia, Lithuania, Malta and Japan have banned the practice.
But the FCC, in its infinite wisdom, decided that instead of banning zero rating, it would take a wait and see
approach, addressing zero rating behavior on a case by case basis. And you can understand the logic; the FCC believes it's best to let ISPs experiment with what they insist are just creative new pricing models. The problem is one of precedent. Allow any form of zero rating, and you've already opened the door to the role of ISP as warden and gatekeeper. The other problem? The FCC's wait and see approach has so far involved doing absolutely nothing, even in the face of obvious anti-competitive behavior.
As a result, T-Mobile's now exempting both select video and audio streaming services from caps as part of its Music Freedom
and Binge On
programs. AT&T and Verizon's "Sponsored Data" programs charge companies
a fee to have their content receive preferred, cap exempt status, putting any smaller companies that can't afford the fee at a disadvantage. Comcast has been slowly expanding its usage caps, then exempting its own content
from them, giving it an unfair advantage against Netflix.
Though they vary in severity, all four of these companies are using their power as middlemen to potentially give some companies an advantage over others, the very thing our net neutrality rules were supposed to put an end to
. Comcast's behavior is probably the most unapologetically anti-competitive of the bunch. Yet the FCC's response to most of these so far has ranged from total silence to outright praise
Well, at least until last week, when the agency finally fired off letters to Comcast, AT&T and T-Mobile
(pdf), asking them for more detail on zero rating plans that have been fully detailed for months (in AT&T's case, a few years). At an agency meeting last week FCC boss Tom Wheeler made it clear this was simply an inquiry, not an investigation, and the letter informs the companies the FCC's just looking to better understand what ISPs are doing (the agency was, apparently, in cryogenic storage all year):
"We want to ensure that we have all the facts to understand how this service relates to the Commission's goal of maintaining a free and open Internet while incentivizing innovation and investment from all sources. We would also like to hear from you any additional perspectives you'd like to share about changes in the Internet ecosystem as a whole. To assist us in this review, we request that Comcast make available relevant technical and business personnel for discussions about the service with FCC staff, no later than January 15, 2016."
While the FCC moves at a glacial pace, Comcast has spent much of the year using broadband usage caps and zero rating for unfair market advantage. Again, Comcast is imposing unnecessary
broadband caps in uncompetitive markets to hinder Internet video, then exempting its own streaming service
from usage caps to penalize competitors like Netflix. So far, Comcast has argued this couldn't possibly be a net neutrality violation
because the service spends significantly more time traveling over Comcast's managed IP infrastructure instead of the public Internet. It's a tap dance, and the FCC's response is timid and underwhelming.
If the FCC had clearly prohibited zero rating, it wouldn't have opened the door to Comcast's latest logical lambada. As we worried
when the rules were crafted, leaving zero rating enforcement ambiguous opens the door to all manner of net neutrality violations -- just as long as an ISP is wearing the right tap dancing shoes