FCC Launches Proceeding on Broadband Data Caps

The FCC in a 3-2 vote adopted a notice of inquiry seeking comment on the impact of data caps on consumers and competition in the broadband marketplace. The NOI "launches a formal proceeding through which the agency can hear from those impacted by data caps," said a news release Tuesday. Comments are due by Nov. 14, replies Dec. 2, in docket 23-199. Commissioners Brendan Carr and Nathan Simington dissented.

"We are doing this to give voice to those who have told us that they lack competition and a choice of providers where they live and believe data caps are unfair," said Chairwoman Jessica Rosenworcel: "We are doing this to give voice to those who have told us that data caps that limit their broadband usage restrict their ability to work from home." The goal is to "understand what these caps look like now" and "identify what is happening now and what we can do next."

Consumers are using more data than ever with "no signs of slowing down," the NOI said. The item seeks comment on the use of data caps for fixed and mobile broadband service, as well as "whether data caps cause harm to competition or consumers' ability to access broadband."

"We seek," the NOI said, "to better understand why the use of data caps continues to persist despite increased broadband needs of consumers and providers’ demonstrated technical ability to offer unlimited data plans." The FCC also sought comment on its legal authority to act on data caps.

In his dissenting statement, Carr called the NOI "legally infirm" because the FCC's claims of authority were based on the same claims the 6th U.S. Circuit Court of Appeals stayed in the pending case on Title II broadband classification (see 2410030018). The FCC is starting down the path of "directly regulating rates" by "seeking comment on controlling the price of broadband capacity."

Simington also called the item a move toward rate regulation. Usage-based pricing "is not a debate into which the commission should wade" because "whether or not usage-based pricing is pro-consumer, regulation of usage-based plans of any variety is rate regulation by another name," Simington said in his dissenting statement. Regulating "essential service components" of what ISPs provide at a given rate in terms of speed, quality, or amount, is "the same as regulating the rate itself."

"Those who use less data can choose lower-cost options reflecting common-sense economics," said NCTA in a statement: "Instead of launching a proceeding that needlessly questions the accepted, pro-consumer benefits of more competitive options, the FCC should return its focus to clearing the real obstacles that impede our national drive to bring internet to all."

The FCC also published hundreds of consumer comments about the "impact of data caps on their lives" in addition to the NOI. Free State Foundation President Randolph May noted the FCC's news release cites "snippets of 'stories' related to persons claiming to be adversely impacted" by providers who charge higher rates for heavier usage rather than the "economics of building out and maintaining even faster, more reliable broadband networks."