The FCC takes aim at broadband data caps

It’s 2024 and yet some internet service providers in the US still charge you if you go over an allocated monthly data limit. Why? It’s not as if internet access is a finite physical resource. It doesn’t cost Comcast more to deliver you 1,001 gigabytes versus 999 gigabytes.

Well, the United States Federal Communications Commission (FCC) is now looking into it, with an eye to possible regulatory action.

As of yesterday, the FCC has released a “Notice of Inquiry” (PDF), which is the federal government’s version of “I’ve got my eye on you.” The Commission waxes poetic on the current state of the market for both home and mobile broadband internet plans, especially considering how the public’s usage patterns have changed and expanded post-COVID, and whether or not data caps place an undue burden on American consumers. (Apparently 20 percent of us consume more than 1TB of internet data each month. The average is just over 585GB.)

Many broadband ISPs suspended their data cap policies during the COVID pandemic lockdowns as home data use boomed. This didn’t appear to cause any undue burden on those ISPs, according to an FCC report from 2021. And why would it? Again, it doesn’t cost Comcast any extra to send you 1,001 gigabytes versus 999 gigabytes.

But it’s important to note that this new FCC inquiry covers both standard “landline” internet access and mobile access, the latter of which the Commission has been more hesitant to regulate over presumably justified limits to manage ballooning wireless traffic on limited spectrum. It’s a big change in the scope of the FCC’s authority.

“We seek 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,” says the inquiry. Actual regulation resulting from the inquiry and ISPs’ responses to it might seem like a long shot… except that the inquiry also lay outs the FCC’s “legal authority to take action regarding data caps.”

If I may get on an editorial soapbox: The FCC appears to be saying, “Give us a good reason why these data caps still exist, or we’ll swing our big regulatory stick at you.”

Under the Biden administration and chairwoman Jessica Rosenworcel, the FCC has been notably pro-consumer and pro-regulation. The US standard speed for calling service “broadband” has quadrupled, rising to 100 megabits down and 20 up. And the Commission has forced providers to display service labels that resemble the familiar food nutrition labels, more obviously breaking down price and speed expectations.

But the FCC isn’t totally free in its regulatory efforts. US corporations can still appeal to the court system for any federal regulation that doesn’t come directly from a law passed by Congress — and depending on the specific court, those appeals might find themselves in front of a business-friendly judge. The FCC is also historically less active during conservative presidencies and might find itself with a more laissez-faire attitude toward broadband regulation under a potential second Trump administration.

Case in point: FCC commissioner Brendan Carr, appointed by Trump in 2017, dissented from Rosenworcel: “I cannot support the Biden-Harris Administration’s inexorable march towards rate regulation and because the FCC plainly does not have the legal authority to do so.”