FCC chairman Tom Wheeler said Thursday he thought T-Mobile's Binge On zero rating plan was the sort of highly innovative approach the FCC's new network neutrality rules were predicted to thwart, but clearly didn't.
Wheeler, in a press conference following the FCC's November meeting, appeared to endorse the Binge On offering, calling it pro-competitive and innovative. "It is clear in the Open Internet order that we are pro-competition and pro-innovation and clearly, this meets both of those criteria," he said. "It is highly innovative and highly competitive."
He then said that it appeared the plan does not violate the brightline no paid prioritization rule, but took something off the endorsement.
He said the FCC would keep an eye on Binge On per the general conduct standard in those new Open Internet rules, which allows the FCC to look at such business models on a case-by-case basis.
That rule, he elaborated, says a carrier "should not unreasonably interfere with the access to someone who is trying to get to an edge provider and an edge provider who is trying to get to a consumer. So, what we are going to be doing is watching Binge On, keeping an eye on it, and measure it against the general conduct rule."
“The Commission staff is working to make sure it understands the new offering," said FCC director of Media Relations Shannon Gilson, of Binge On following the chairman's press conference.
Binge On is a zero rating plan in which video streaming services including Netflix, HBO Now and Hulu do not count against data allowances.
Commissioner Ajit Pai said following that statement that nobody still knows whether Binge On will pass muster under the general conduct standard. "I don't think it should give any company comfort to know that the state of the law is so unsettled."
Pai said following Wheeler's qualified endorsement that the question remained: "Does T-Mobile's Binge On and any other offerings like it violate the net neutrality order." He said that under the Internet conduct standard nobody can get certainty, which he suggested was illustrated by Wheeler's statement that is was pro-competitive, followed by the signal that it still needed to be vetted under that general conduct standard.
Commissioner Michael O'Rielly said that if someone was looking for a blessing, the chairman appeared to have given it. "someone is looking for a blessing and everyone is kind of holding their breath waiting for a decision. It wasn't an official issuance by the General Counsel's office or the Enforcement Bureau, but they just got the blessing they were seeking and I imagine now we are going to see a lot more offerings like it."
But he also said that holding up those innovative offerings for a moment like the chairman's statement was just the sort of problem he had pointed to with the general conduct standard.
"Tom Wheeler's comments regarding T-Mobile's new BingeOn zero-rating plan calls to mind the good familiar cop/bad cop routine," said Randolph May, president of free market think tank, the Free State Foundation. "On the one hand, Wheeler's statement that the plan is pro-competitive and innovative is commendable. On the other hand, his further elaboration that the FCC will monitor the T-Mobile plan for compliance with the Open Internet Order's 'good conduct' rule is disturbing. This is because the vague 'good conduct' standard means anything that Wheeler's Enforcement Bureau says it means on any given day."
