Yesterday, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Notice of Inquiry (NOI) considering vast new regulations on data usage for broadband Internet access service (BIAS). This marks yet another proceeding that would negatively impact deployment, adoption, and prices, showing how far the Commission has strayed from its statutory authority. The Commission should not move forward with this proceeding.

“The Commission can’t possibly expect to finish this proceeding by January,” said James Dunstan, TechFreedom Senior Counsel. “Proposing vast new regulations on BIAS data usage just a few weeks before control of the Commission changes is the height of bad governance. Similar to the proposed rules for AI political advertising, the FCC appears to be rushing into yet another proceeding at the tail end of an administration, spooling up the communications bar to comment on whether the Commission should step in and either prohibit outright, or otherwise regulate, data limits and charges for BIAS service.”

“The FCCʼs claims of statutory authority are weak and unconvincing,” Dunstan continued. “Section 257 is primarily a reporting statute aimed at identifying market barriers, not granting new regulatory powers. Prior Commissions have recognized this, and more importantly, have concluded that Congress never intended that the Commission could invoke it to micromanage Internet access. This NOI spends a scant four paragraphs and 432 words on the legal authority of the Commission to regulate data caps. This was no doubt intentional, given how tenuous the Commission’s Title II common carrier utility-like classification authority appears to be.”

“Prohibiting or highly regulating data caps would severely harm the Internet ecosystem,” Dunstan concluded. “Can we ever imagine any other utility where the government would require the utility provider to allow infinite consumption of the regulated service for a single price? The Commission ignores basic economics, believing the cost of providing BIAS service is zero. While the marginal costs of providing an additional GB of data per subscriber might be low, that figure fails to account for the overall network investment that must be recouped via charges to subscribers. By banning customers from choosing data-cap plans, which are typically more affordable than unlimited options, the FCC would effectively mandate that the poor and the old subsidize the young and rich, whose main use of the Internet is for entertainment.”

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About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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