Discriminatory data caps

It sure looks like Senator Ron Wyden of Oregon is gearing up to pursue a neutral internet agenda in the 113th Congress.

This month at CES (I wasn't there; I'm looking at prepared remarks), he gave a speech that concluded, "insurgents should be afforded the same opportunities in the marketplace as incumbents."

Data cap text messageThere are probably several fronts on which to pursue this agenda, but today I want to focus just a moment on one of them: bandwidth restrictions, or "data caps," imposed by ISPs.

At the tail end of the last Congress, Sen. Wyden introduced a bill, the Data Cap Integrity Act of 2012, which proposed that ISPs be required to submit their data cap policies to the FCC, and that the agency then "determine whether the data cap functions to reasonably limit network congestion in a manner that does not unnecessarily discourage use of the Internet."

That's a vague standard, "discourage use of the Internet," and the adverb, "unnecessarily," is potentially a huge loophole. But the intent of the bill is more apparent from this provision:

"DISCRIMINATION OF CONTENT.—A covered Internet service provider may not, for purposes of measuring data usage or otherwise, provide preferential treatment of data that is based on the source or the content of the data."

The executive of a big cable company that also owns a TV network, lamenting the balkanization of audiences and a freefall in advertising revenue, may well be thinking, "we'll just throttle back on bandwidth for everyone else's shows and privilege ours."

Wyden has his eye on that. He's going to need support because I can imagine the entertainment industrial complex, led by lobbyists like former Senator Chris Dodd, is surely going to resist.

Screenshot from Wayan Vota / Flickr.


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