Wheeler Seeks Info on Data, Web Video Practices

FCC Chairman Tom Wheeler is seeking info from Comcast about Stream TV, AT&T about sponsored data plans and T-Mobile about Binge On, all in the interests of learning more about the innovative practices he said the FCC would be looking at in relation to new open Internet rules.

Wheeler said in a press conference after the monthly public meeting, when asked about zero-rating plans, that he had sent letters to those companies this week asking them to come to the commission to discuss "innovative" new services.

"There are lots of innovations that undoubtedly are still under the hood or under the covers that people are thinking about, so let's just make sure we are informed as to what is going on in all these areas," he said. He said it has been six months since the open Internet order went into effect," suggesting it was time to take stock of these innovations. He pointed out that in the Open Internet order the FCC said it would "observe and keep ourselves educated, and that's what we're doing."

He said the letters set no deadline for the talks, and pointed out that with the holidays coming up that would affect the timing.

"We look forward to participating in the FCC's fact gathering process relating to industry practices," Comcast said in a statement. "Our Stream TV service does not go over the public Internet - it is a cable service that only works in the customer's home. It is not a so-called 'zero-rated' service. We are happy to cooperate with this request."

“We are reviewing the letter and will respond as appropriate.  We remain committed to innovation without permission and hope the FCC is too,” said an AT&T spokesperson.

Wheeler said it was not an investigation, but simply to "help us stay informed." as well as anything those companies want to talk about.

Commissioner Ajit Pai said it was indeed an investigation, and a turnabout from the chairman's signals last month that T-Mobile's Binge On appeared to be an innovative and pro-competitive service that squared with the rules.

Pai said that, as the Electronic Frontier Foundation warned, the new rules could be applied in ways that disincentivize innovation and investment in next-generation online services. "This is not simply a benign informational inquiry," he said. "The FCC is obviously trying to gather facts and determine whether those services comport with the network neutrality regulations."

Commissioner Michael O'Rielly said he was surprised by the letters, as was Pai, and equally concerned about the letters and the process that both suggested left them out of the loop. O'Rielly said it seemed to him the FCC was mandating that the companies talk to it, not simply asking them to.

O'Rielly said they talk with and  learn about issues from ex parte meetings with companies all the time without sending them letters requiring them to appear. Pai said there would be political pressure for the FCC to act on whatever information it gleans.

Harold Feld, VP of Public Knowledge, applauded the inquiry, and said that far from a move to intimidate "big broadband," it was simply the FCC taking its responsibilities seriously.

“In 2012, Public Knowledge filed a petition with the FCC to investigate the anti-competitive impact of Comcast exempting its video content from its own data cap while counting streaming video from rival services," Feld said. "Since then, Comcast has been charging customers overage fees for exceeding its 300 GB/month cap, while exempting its own StreamTV service. The FCC has received over 13,000 consumer complaints alleging Comcast has used its caps to “punish” cord-cutters and falsely claim overages for customers that stream rival services.

“Given Comcast’s lengthy history of anti-competitive conduct, and the recent flood of consumer complaints, the FCC’s letter to Comcast is not only long-overdue, but mild to the extreme," he said.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.