As we just got done saying, while the new net neutrality rules are certainly a great step forward, there are probably more questions than answers in terms of just how far the FCC will be willing to go when it comes to policing anti-competitive behavior. For example, while the agency says it will keep on eye on “interconnection” fights, we won’t know what the FCC will determine as “anti-competitive” until we see the agency act. Similarly, while numerous countries including Canada, The Netherlands, Chile, Slovenia and Norway all have neutrality protections that outright ban “zero rated” apps (letting apps bypass user caps), the FCC so far seems to think zero rating is perfectly ok.
That’s potentially a problem, given the bad precedents set by programs like AT&T’s Sponsored Data and T-Mobile’s Music Freedom, which the FCC has indicated are ok under their interpretation of the rules. These programs profess to be boons to the consumer, yet by their very nature automatically disadvantage smaller internet players. As such, the future of neutrality involves violations accompanied by skilled sales pitches that result in consumers not understanding — or in some cases even cheering — when the idea of net neutrality is compromised.
First case in point is HBO and Showtime, which appear eager to determine just where the FCC intends to draw the line. According to a new report in the Wall Street Journal, both companies are working closely with ISPs on deals that would not only give their upcoming streaming video services delivery priority, but would exempt them from carrier usage caps:
“Those companies have talked to major broadband providers such as Comcast Corp. about having their Web TV services treated as “managed” services, according to people familiar with the discussions. In effect, that would move them away from the congestion of the Internet, which they fear will only get worse as more people opt to stream movies and TV shows on the Web.
The other benefit: A separate lane would be exempt from monthly data-usage thresholds operators enforce for public Internet traffic, saving customers from the surcharges that can kick in if they binge on too many episodes of “Game of Thrones” or “Homeland.”
The article’s descriptions of things like “managed services” and “special treatment” are phrased so ambiguously I get the impression the Journal’s reporters may not have fully understood what their sources were telling them. However, there’s no ambiguity to the idea that Showtime and HBO are interested in having their content specifically made exempt from what are already arbitrary usage caps. The article proceeds to note that Comcast, with a merger awaiting regulatory approval, is nervous about running afoul of the FCC. Dish Network, meanwhile, makes it clear they’d see such a deal as a neutrality violation:
“At least one emerging online TV player, Dish Network Corp.’s Sling TV, believes the managed-service arrangement would be a negative overall. “It’s a bad thing for consumers and a bad thing for innovation,” said Roger Lynch, Sling TV’s chief executive, adding that big companies like Dish could afford to cut special deals like this but small companies can’t. “It makes a mockery of net neutrality,” he said, adding that Sling would strike such a deal only “under duress,” if other companies did first.”
So again, while our new net neutrality rules are certainly a solid step forward, until we see what the FCC specifically determines is a violation — and how the consumer complaint process will work — it’s hard to tell just how effective they’re going to be. If it’s ok for T-Mobile to exempt the biggest music services as part of its Music Freedom plan, is it ok for ISPs to similarly exempt Showtime and HBO from their usage caps? Where exactly is the line going to be drawn? The rules don’t specifically say, but they won’t be worth much if the FCC considers usage caps and “pay to play” cap bypass schemes just innovative market pricing.