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If data caps are like 1-800 numbers, the same consumer protections that apply to phone numbers must also apply to data.
Recently we have seen stories about wireless carriers “offering” content creators the opportunity to pay to exempt their content from data caps. We pointed out that this type of arrangement is exactly the type of thing that net neutrality is supposed to prevent. However, some wireless carriers have defended it as merely a modern day 1-800 number. What they forget is that 1-800 numbers did not exist in a vacuum.
Yes, 1-800 numbers allowed businesses to make incoming calls free to customers by picking up the charge. In that sense, they superficially resemble a scheme where certain content is exempted from data caps. But stopping there kind of misses the point.
1-800 numbers exist within a larger regulatory framework that protects consumers (and the businesses that use them) from abuse at the hands of the phone company. This framework, known to telecom attorneys as “Title II” (after the part of the law that governs phone networks) establishes the rules that allow the phone network to function in a reliable, affordable way. While there are many parts of Title II, the overarching concept is established in the first section:
All charges, practices, classifications, and regulations for an in connection with such communications service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful.
And the second section:
It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services …
Sounds good, right? These basic protections help to make sure that phone companies do not abuse their position and weaken the value of an open and available communication system. It also makes sure that they do not turn 1-800 numbers into ways to take advantage of phone users.
In fact, we think that they sound so good that we have long urged the FCC to apply these simple principles to internet access services as well. But most ISPs fought hard to prevent that from happening.
So it was a bit strange to see those same ISPs pointing to 1-800 numbers as an example of a way to think about data caps.
1-800 numbers came about because long-distance rates were high. And long-distance rates were high because they were used to subsidize phone service in high-cost rural areas. As such, 1-800 numbers were a regulatory answer to a regulatory problem. In contrast, wireless data caps exist because carriers would rather collect overcharges than invest in their networks.
But maybe those are just details. Unlike some, we do not believe that just because a principle has been useful for over a century we should get rid of it. If the ISPs want to talk about updating the 1-800 number concept for the internet, we welcome that. However, we will assume that they mean bringing along everything that makes such a system work. Not just the part that lets them charge people twice.