WASHINGTON — Depending on who’s doing the talking, zero-rating plans are either potentially anti-competitive violations of the Federal Communications Commission’s new network-neutrality rules or an innovative business plan that could help drive broadband adoption and benefit low-income Web users.
But the key to the future of those toll-free or sponsored data plans, which are becoming increasingly attractive, is what the FCC decides they are after it completes an inquiry into the practice.
The FCC is still vetting the information it requested in December from major Internet-service providers — the mid-January deadline for data in the inquiry was pushed back by Winter Storm Jonas, which buried the nation’s capital.
The inquiry appeared to be a reaction to pressure from zero-rating plan critics after FCC chairman Tom Wheeler in November praised T-Mobile’s new “Binge On” offering, which allows the mobile phone provider’s subscribers to access video from certain providers without it counting against subscriber data caps, as just the type of innovation the FCC’s new Open Internet order would not discourage.
When Wheeler seemed to backtrack on that praise and said the agency wanted more information about Binge On, Comcast’s Stream TV service and AT&T’s sponsored data plans, AT&T responded, “We remain committed to innovation without permission, and hope the FCC is too.”
AN INQUIRY, NOT A FIAT
Wheeler insisted two weeks ago that the FCC’s inquiry was merely that, telling reporters he had not sat in on any of the meetings, nor had any of the members of his staff.
But the chairman controls the agency’s bureaus, Republican commissioner Michael O’Rielly countered. “We do all know that the bureaus are at his discretion because otherwise, I would get a lot more information,” O’Rielly said.
O’Rielly said he is still trying to find out more information about the inquiry, but said that he was troubled by the direction in which the FCC was heading. He said he was troubled by the “mother may I” approach of the agency’s having to bless — or reject — new business models. That was concerned him about the net-neutrality rules, he said.
The new Open Internet rules do not prevent zero-rating plans, but they do prevent paid prioritization and also give the FCC some wiggle room through a general-conduct standard with which it can essentially review any business practice it thinks might have the effect of favoring some content over others for anti-competitive purposes.
“Because the Internet is always growing and changing, there must be a known standard by which to determine whether new practices are appropriate or not,” Wheeler said back when he proposed the Title II-based rules.
At the Internet Education Foundation’s 12th annual State of the Net conference in Washington two weeks ago, people on both sides of the issue were trying to help the FCC decide.
Roslyn Layton, a visiting fellow at the American Enterprise Institute’s Center for Internet, Communications, and Technology Policy, made the case for why zero rating plans were not the threat to Internet openness that some have claimed.
She said that there is no good or service that is not subject to a differential price and said it was “strange” to her why Internet service would be singled out.
She said the one of the best things about the history of TV, radio and the Internet was that advertisers and sponsors were allowed to lower the cost to end users. That’s a key difference between media industries in the U.S. and Europe, she said, saying Europe’s license-fee model has meant fewer channels and less content.
The Internet also benefits from third-party subsidization, she said, pointing out that edge provider Google effectively zero-rates its search by displaying ads.
One criticism of the FCC’s approach to its new Internet rules is that they target ISPs while leaving edge-provider business practices alone. ISPs aren’t explicitly asking the FCC to regulate the edge, but point out that there are opportunities for edge providers to interrupt the virtuous circle that the FCC appears to gloss over in focusing on regulating ISPs. Wheeler has said edge providers are outside the scope of the rules.
On the other side is Stanford University law professor Barbara Van Schewick. The key to the issue is whether a zero rating plan has the effect of “picking winners and losers online,” she said. The bright-line net neutrality rules are about doing that with technology, via slowing or blocking traffic or by buying a technical advantage for a fee, aka paid prioritization.
Zero-rating is just a different form of favoring some content over others, she argued — via business plan, rather than technical limitations or advantages.
WATCHING FOR ‘COMPETITIVE ADVANTAGE’
Comcast’s Stream TV, for example, was not about subsidizing access, but instead about “giving a competitive advantage to [Comcast’s] own application,” she said. That is a key net-neutrality concern, she said.
Kevin Martin, former FCC chairman and now an attorney for Facebook, which has its own zero-rating program to try and boost basic connectivity, said he didn’t have any problem with the FCC taking a case-by-case approach to vetting business plans under its new rules, but said zero-rating can be beneficial.
Martin signaled the FCC was right to be vetting the plans, but did not throw cable operators under the bus. He said MSOs would argue their customers have already paid for the programming ISPs are zero-rating.
But unlike cable operators, which have issues with the FCC’s case-by-case approach under the general conduct standard, Martin was all for it. “I think an analysis of what’s actually going on with each program is appropriate, and the FCC got that component right,” he said.
Layton argued zero rating plans aren’t just for the big dogs. She said they benefit smaller network providers who can’t compete with larger providers in terms of speed, but need another way to differentiate themselves.
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