Will the FCC strike down AT&T’s Sponsored Data plan?

Federal Communications Commission Chairman Tom Wheeler indicated that he'd be watching closely as AT&T rolled out a new offering called Sponsored Data, which promises to keep certain mobile browsing from counting against your monthly data cap but which has raised the ire of network neutrality advocates.

Sponsored Data makes it possible for companies to subsidize your use of their online services by paying AT&T a separate fee. While the plan frees up more data per month for AT&T's customers, Internet advocates fear that content creators will be at a disadvantage if they can't afford to pay up. "My attitude is, let's take a look at what this is," said Chairman Wheeler. "Let's take a look at how it operates. ... If it interferes with the operation of the Internet ... if it develops into an anti-competitive practice ... if it does have some kind of preferential treatment given somewhere, then that is cause for us to intervene." “I’ve been talking about what I call the regulatory seesaw. If there are good things happening the marketplace, if there is competition, then the commission doesn’t have to do much. But it can (tilt) as well.” The current Open Internet Order, he said, “is designed to encourage competition, is designed to be different for wireless than from wire, and it makes it clear that if there are untoward things impacting things to the network, undermining innovation, then the commission should move.” Wheeler framed his thinking in terms of the new realities of regulation. “The old regulatory model was ‘We pretty much know where things are going. There are few hothouses that produce advancements, like Bell Labs; we can track those and fit those into policy.’ It was a very proscriptive model.” But now, he said, changing is happening so fast, “Even the wisest and best intentioned people can’t sit around being proscriptive. But what you can do is say you want to have an environment that encourages innovation and holds true to a set of values and maintains authority to deal with protection of those values.”

Wheeler's comments don't do much to clarify his cryptic positions on network neutrality; the agency head has previously voiced his support for the "open Internet" but has left open the prospect of letting Internet providers create a tiered system where some types of traffic enjoy an advantage over others. Critics worry that such a system would make it harder for startups to enter the market.

Wheeler’s fellow commissioners also declined to make any quick decisions. “I don’t want to pass regulatory judgment right now,” said FCC Commissioner Mignon Clyburn. “We need to let things develop,” agreed Commissioner Ajit Pai. “The FCC shouldn’t a priori declare business models out of bounds.” While all the commissioners support an open Internet, none would commit on what direction the FCC might take on its network neutrality rules if the DC Circuit Court strikes all or part of them down. “The prudent thing to do is wait and see,” said Commissioner Jessica Rosenworcel.