FCC Probes Whether It Can Pop A Cap In ISP Data Caps

The US government's probe into the necessity of ISP data caps has escalated with the launch of a formal inquiry and the publication of hundreds of testimonials from those affected to drum up support for potential regulatory action.

The Federal Communications Commission (FCC) yesterday announced the launch of its inquiry into ISPs, both terrestrial and mobile, for their use of artificial data caps and speed throttling to limit internet access for subscribers on lower-cost tiers. These limits, said FCC chairwoman Jessica Rosenworcel, are indefensible in the post-pandemic era.

"During the pandemic, many fixed and mobile internet service providers refrained from enforcing or imposing data caps, suggesting that our networks have the capacity to meet consumer demand without these restrictions," Rosenworcel said.

But as the pandemic wound down, the caps returned, triggering an initial look into how consumers were affected by data caps in 2023. That effort centered on getting consumer feedback on how they were bilked by their ISPs through reinstated caps and subscription price hikes, the results of which were released yesterday alongside the formal notice of inquiry.

In one case, a family reported having to take their children to use public Wi-Fi because the only unlimited option in their area is $190. In an another instance, a telemedicine provider said that it was forced to pay for higher-priced services due to their need for bandwidth, while a disabled individual said an ISP had more than doubled the cost of their plan since the pandemic and added a data cap.

"For most people in the United States, rationing their internet usage would be unthinkable and impractical," Rosenworcel said of the comments. "But, for millions, limitations on how much data they can use online is a constant concern."

To that end, the FCC is seeking more comments from the public and the broadband industry on why, among other things, caps persist despite the demonstrated technical ability of companies to offer unlimited data plans without harming their networks.

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Most crucial to the notice of inquiry, at least for those looking to the FCC for regulatory cues, is the Commission's question about whether it has the legal authority to take action on data caps. In 2023, when the FCC was first looking into the matter, it said it was exploring its legal authority to address the issue of caps without needing to pass new laws, and has seemingly identified a few possible avenues to do so.

The FCC is considering taking action on ISP data caps under section 257 of the Communications Act, which gives the FCC the right to eliminate market barriers for small businesses in acquiring or using telecommunications and information services.

"We also seek comment generally on our ability to rely on other sources of statutory authority within the Act for potential actions related to data cap practices," the FCC noted. Additionally, the Commission said it's examining whether there are any barriers – like the First Amendment – that could hamper its actions.

We approached the FCC (which didn't respond) as well as multiple ISPs, to ask about the Commission's proposal. Those who answered directed us to telecommunications industry trade associations.

CTIA, the wireless industry association, said: "Wireless providers maintain robust networks and offer a wide range of broadband service plans that enable consumers to choose what best suits their unique needs and budgets. American consumers used over 100 trillion megabytes in wireless data last year, and thanks to the highly competitive wireless industry, they are paying less for their service, including unlimited data plans that are more than 40 percent cheaper than in 2010. While many consumers choose unlimited plans, usage-based pricing plans give cost-conscious customers options and make it possible to offer Lifeline-supported mobile plans at no cost to eligible consumers."

A USTelecom spokesperson commented: "Providers offer an incredibly wide range of choices to empower consumers to select the plans that best meet their individual needs. Consumers should continue to be in the driver's seat when making these choices, not government."

US residents with a data cap story are invited to share their data cap tale with the FCC – the more the merrier when it comes to building a case for banning the practice, naturally. ®