Testimony to Federal Communications Commission
Re: Charter’s Petition to Sunset Merger-related Deal Conditions
July 22, 2020

Stop the Cap! is an all-consumer, all-volunteer advocacy group created in 2008 to oppose data caps on home broadband internet service. Our group does not accept corporate contributions of any kind and our only motivation is to promote better, more affordable broadband service without the imposition of unnecessary data caps or usage-based pricing schemes. We have submitted comments to the FCC in multiple proceedings over the last decade, including the 2016 merger of Charter Communications and Time Warner Cable and Bright House Networks.[1] We feel well-qualified to share our views on this issue because our group recommended the FCC ban data caps as a condition of approving this merger.

We are strongly opposed to Charter’s petition to sunset the order that prohibits Charter from imposing data caps and usage-based pricing for a period of 7-years. We are disappointed the company has petitioned the FCC to do so in the middle of a historic pandemic and economic downturn rivaling the Great Depression. Never before has reliable and affordable broadband service been more important to the American people. From at-home learning to tele-commuting for work, online health care and teleconferencing, updates on the coronavirus and testing, filing for unemployment or applying for a job – all require the use of the internet to fully maintain social distancing to keep people safe. Charter’s untimely petition demonstrates it does not have the best interests of its customers at heart.

Consumers Hate Data Caps and Usage-based Pricing Schemes

Time Warner Cable, which today is part of Charter/Spectrum, learned quickly that customers loathe data caps and usage-based pricing schemes. An effort to replace flat-rate unlimited internet with a compulsory usage-based billing scheme flopped after the company announced it would expand a data cap trial to customers in parts of New York, Texas, and North Carolina in April 2009.[2] The trial caused a media sensation in cities like Rochester, San Antonio, Austin, and the Triangle region around Greensboro in North Carolina. Rep. Eric Massa (D-N.Y.) proposed federal legislation banning data caps as a result. Sen. Charles Schumer (D-N.Y.) criticized the caps as anti-consumer and anti-competitive.

Just two weeks after word leaked about the expanded data cap trial and protests erupted, then-Time Warner Cable CEO Glenn Britt permanently shelved the plan. That was the last attempt Time Warner Cable would make to impose a compulsory data cap and usage-based pricing scheme on its customers.

Subsequent efforts to test optional usage-based pricing plans were spectacular failures for Time Warner Cable. Consumers simply do not want compulsory data-capped internet service or usage-based pricing. Inadequate competition is the key reason such unpopular plans still exist today.

Time Warner Cable management shared their experiences with data caps with investors while exploring how customers would react to two optional usage-based discount programs the company offered consumers for a time in the early 2010s.

In 2013, Time Warner Cable welcomed new broadband customers with an unlimited Standard Broadband plan for $44.99/month. (Today, Charter’s Standard Internet plan starts at a less affordable $65/month, although it delivers substantially faster speed than Time Warner Cable’s basic plan did in 2013.) The voluntary usage-capped plan that Time Warner Cable offered that year provided a paltry $5/month discount off the price of Standard Broadband if subscribers agreed to keep usage under 5 GB a month. The cost of that usage-based plan was $39.99/month. In that year, average broadband usage was approximately 28 GB a month, according to the company. Assuming a customer enrolled in the usage capped plan accidentally consumed the average amount of data most customers used, their total bill including overlimit fees would have been $62.99, far more than the cost of the unlimited option. Consumers fearing unplanned bill shock made the company’s traditional unlimited plans far more attractive.

Former Time Warner Cable CEO Rob Marcus told investors in September 2013:

“Most customers today — the vast, vast majority — take our unlimited offering and I think over time most customers will continue to take unlimited,” said Marcus, who was serving as Time Warner Cable’s chief operating officer at the time. “They value it and will be willing to pay for it. I think that is great and we have no desire to change that.”[3]

In the spring of 2014, Marcus told investors at a Deutsche Bank investor conference that its attempt to introduce a more generous, optional 30 GB usage plan was also a major failure.

“If you take the 30GB a month and compare it to what median usage is, let’s say high 20s — 27GB a month, that would suggest a whole lot of customers would do well by taking the 30GB service,” Marcus said. “Notwithstanding that, very few customers — in the thousands — have taken the usage-based tiers and I think that speaks to the value they place on unlimited — not bad because we plan to continue to offer unlimited for as far out as we can possibly see.”[4]

Based on Marcus’ figures, less than 1% of Time Warner Cable customers enrolled in one of their usage-based billing schemes.

Coincidentally, just prior to Charter’s announcement it would merge with Time Warner Cable and Bright House Networks, the company suddenly shelved its own data caps.[5]

Despite the overwhelming distaste for data caps and usage pricing in the home broadband marketplace, many providers have ignored consumer sentiment and implemented data caps averaging 1 TB, with a punishing overlimit fee that averages an extra $10 for each additional 50 GB increment of usage.

The Seven-Year Ban on Charter Imposing Data Caps Remains Warranted

Stop the Cap! argues, and the FCC stated in its May 5, 2016 “Memorandum Opinion and Order” granting the merger between Charter, Time Warner Cable, and Bright House Networks, that data caps can be an anticompetitive weapon to protect video profits, are a tool to earn even more revenue from subscribers, and can be symptomatic of a lack of competition in the broadband provider marketplace.

The FCC’s reasoning for the imposition of a 7-year ban on Charter imposing data caps was to protect consumers and competition. In fact, the FCC found that absent conditions, the merger deal Charter proposed was not in the public interest. Specifically, the FCC concluded that Charter’s desire to protect its video profits “will increase incentives to impose data caps and usage-based prices in order to make watching online video more expensive, and in particular more expensive than subscribing to a traditional pay-TV bundle.”[6] To approve the deal, the FCC required “New Charter” to comply with certain conditions to clearly demonstrate “its claimed public interest benefits so that the transaction’s benefits will clearly outweigh the likely public interest harms.”[7]

Nearly five years after the merger was approved, Charter is now petitioning the FCC to sunset various deal conditions early, including a prohibition on implementing data caps or usage-based billing. Charter’s petition narrowly focuses its argument on the state of the competitive video marketplace.

Since the 2016 order granting the merger, some consumers have chosen to drop Spectrum’s TV packages in favor of new linear TV streaming packages like Sling TV, YouTube TV, and AT&T TV Now, while a potentially larger number have chosen on-demand video content from Netflix, Hulu, Amazon Prime Video, and others.

Charter argues the presence of these “OVD” services and their relative success is evidence that data caps already imposed by other companies have not stifled their growth. Charter’s core argument is that the prohibition on data caps imposed by the FCC leaves Charter on an unlevel playing field where other providers are free to impose data caps while it cannot until the 7-year ban sunsets.

But the likely outcome of rescinding the ban on data caps would result in direct harm to consumers, potentially deterring usage either by limiting the quality of streamed video to keep data consumption down, or foregoing certain viewing opportunities. Charter seems to forget that other cable operators in the marketplace did not approach the FCC requesting approval of the largest cable industry merger deal in at least a decade – a merger the FCC declared was not in the public interest without conditions like the data cap ban.

We submit that any imposition of data caps on residential broadband service is anti-consumer and anti-competitive, providing strong evidence of the pricing power of a concentrated, uncompetitive marketplace for high-speed internet service – one that became even more concentrated with the merger of Charter, Time Warner Cable and Bright House Networks. The FCC itself found no discernable justification for usage-based billing or data caps in its 2016 Memorandum and Order approving the transaction:

“While wired BIAS providers sometimes claim there are cost-based and efficiency justifications for implementing usage-based billing policies, the Applicants fail to advance such a justification or demonstrate any cost-based or efficiency enhancing rationale for the implementation of data caps or UBP.”[8]

Charter’s petition also conveniently ignores the question of competitiveness in the high-speed internet marketplace. High-speed internet is required to take advantage of online video streaming services. Few companies would alienate their customers with unpopular usage-based pricing plans unless they understood consumers lacked good alternatives. The FCC’s 2016 Memorandum and Order noted the 7-year ban on data caps came partly as a result of concern about the lack of choice in broadband providers (emphasis ours):

“Seven years may also provide the high-speed BIAS provider market sufficient time to develop further with additional investments in fiber from established wireline BIAS providers, Wireless 5G technology, use of smartgrid fiber for broadband, additional overbuilding, and other potential competitors to traditional wired BIAS providers. It is our expectation that these developments will foster competition in the market to make the anticompetitive use of data caps less tenable in the future.”[9]

We submit there is already evidence that strong competition deters the imposition of unpopular data caps or usage-based pricing schemes. Comcast has conspicuously not imposed data caps or usage-based pricing in the northeast and mid-Atlantic regions where Verizon FiOS is its largest competitor.[10] Charter claimed in its petition that Verizon FiOS engages in usage-based pricing, which we argue is in error. As evidence, Charter cites Verizon’s prepaid offerings, which do not involve usage pricing.[11] In fact, Verizon FiOS has marketed its internet service without any disclosed data caps or usage pricing since its inception.

Stop the Cap! submits there has been only an incremental increase in competition among home broadband providers in the United States over the last four years. Fiber overbuilders have made some progress, but have also been hampered by pole attachment disputes, long permit and easement delays, and the need for more investment.[12]

AT&T has successfully completed its fiber expansion program, largely undertaken as a condition of the Commission’s 2015 approval of AT&T’s merger with DirecTV.[13] But AT&T is already the incumbent provider in those markets, which limits competitive benefits. One relatively new entrant, Google Fiber, once cited as a new and potentially strong competitor in the broadband marketplace has clearly retrenched from further expansion, at least for now.[14]

The launch of 5G as a wireless home broadband replacement has been modest, limited to a handful of neighborhoods in a very small number of cities. While 5G will certainly deliver an incremental upgrade to wireless mobile device users, its prospect as a direct competitor to wired cable and phone company home broadband products is questionable.[15] In December 2019, cable executives scoffed at 5G’s potential to deliver serious competition in the home broadband business. Dexter Goei, CEO of Altice USA, called available 5G plans “deeply flawed” because 5G service is not financially viable outside of densely populated urban areas.[16]

Stop the Cap! believes as of the date of this filing, there is still insufficient competition in the broadband marketplace. An early sunset of Charter’s prohibition on data caps will once again make the original merger deal not in the public interest. We agree with the FCC that strong and robust competition will likely eventually resolve the data cap issue, but we see no evidence of any potential marketplace entrant having sufficient scale and market share within the next two years to deter incumbent providers from engaging in anticompetitive data caps and usage-based pricing abuse.

Charter’s Claim It Has No Plans to Impose Data Caps or Usage-Based Pricing, Despite Lobbying for Permission to Do So is Suspect

Charter’s public comments on this issue are not reassuring:

“Once the conditions expire, Charter will weigh the options as we would any business decision, but is currently not even considering implementing data caps or charging for interconnection and has no plan to do so. What Charter seeks is a level playing field so that we can continue to grow and provide superior service to our customers across the country.”[17]

Charter can easily argue it isn’t currently considering implementing data caps because the earliest date that prohibition would sunset is nearly a year away: May 18, 2021. It is highly likely that “weighing the options” would include an assessment by Charter of the existing marketplace and level of competition. That would also include an analysis of Charter’s broadband pricing power, price elasticity and what some industry executives have suggested is broadband’s “long runway” for pricing. Broadband providers enjoy a scarcity in competition and a high demand for their product, which makes price increases inevitable. S&P Global quotes Kagan analyst Tony Lenoir noting “that in the long run, the industry could see more conversation around data caps as usage continues to grow.”[18]

It is questionable why a company like Charter would spend its valuable resources attempting to sunset deal conditions early only to reject taking full advantage of implementing data caps during the next two years before the conditions would have originally expired.

Charter’s petition is in direct conflict with what it argued before the Commission in 2016:

“Charter in particular emphasizes its aversion to data caps, stating that instead of enforcing usage limits it chooses to market the absence of data caps as a competitive advantage. Charter also argues there is a strong business case for not implementing caps. Specifically, Charter explains that it terminated its enforcement of the usage limits trial in the AUP in January 2012 because the benefits to customers of continuing the trial (minimizing bandwidth consumption to preserve a positive Internet experience) would not exceed the program’s costs. Charter also states that caps create marketing challenges because they complicate consumer purchasing decisions. Furthermore, Charter argues that data caps increase churn among subscribers. Finally, Charter states that it plans to distinguish itself from its competitors based largely on the quality and speed of its broadband offerings and that data caps undermine that marketing message.”[19]

Charter’s apparent understanding of how much consumers dislike usage caps and usage-based pricing is admirable, and no doubt was influenced by the lackluster reception Time Warner Cable received when it trialed optional data-capped tiers referenced above. Charter has also emphasized the fact it imposes no data caps in most of its broadband advertising to this day. But when a company faces few competitors, there are no market forces deterring Charter from changing its mind. Only the FCC’s 7-year ban on data caps has assured Charter’s customers they will not face the near-term prospect of data caps, usage pricing, and a possible regime of overlimit fees and costly add-on plans promising to restore unlimited service for an additional $30-40 a month.[20] [21]

Broadband Usage Growth During the Pandemic Exposes the Folly of Data Cap/Usage Pricing Arguments

After an unprecedented number of Americans remained in their homes to work, learn, and entertain themselves while socially distancing to stop the spread of COVID-19, broadband providers saw historic growth in network usage. In fact, a report from OpenVault, which collects U.S. cable subscribers’ usage behaviors and puts them into data sets, found a 47% increase in broadband traffic year-over-year during the first quarter of 2020.[22]

Average broadband consumption increased from 273.5 GB in the first quarter of 2019 to 402.5 GB in the first quarter of 2020. Prior to the COVID-19 pandemic, OpenVault had projected that average consumption would reach 425 GB by the end of the year. Instead, due in large part to subscriber self-quarantines and work from home policies, OpenVault said the average monthly usage for April was on track to top 460 GB.

OpenVault also predicted at least 10% of broadband subscribers, an unprecedented number, are now using in excess of 1 TB a month, which could subject them to usage penalties or overlimit fees if their provider has data caps. About 1.2% of customers consume more than 2 TB a month, which would likely result in additional monthly overlimit charges of $100, using Comcast’s overlimit penalty policy as an example.[23]

The average Charter Spectrum internet customer exceeds OpenVault’s averages. Charter Communications disclosed to investors in May 2020 that the average broadband-only Spectrum customer averaged over 600 GB of usage per month, increasing by more than 20% since the fourth quarter of 2019.[24] Despite the higher usage, Charter’s only significant disclosure of unusual first quarter capital expenditures was $87 million of mobile costs. Charter also told investors (emphasis ours), “Charter currently expects 2020 cable capital expenditures to decline as a percentage of cable revenue versus 2019.”

In other words, the costs to support rapidly increasing usage of Spectrum’s broadband service are not significant enough to require unusual investment. There is no evidence that justifies a need to implement usage caps or usage-based pricing. The cable industry’s largest lobbyist and trade organization, the NCTA, has touted how the cable industry has taken COVID-19 related traffic growth in stride, well prepared to manage current and future traffic increases.[25]

In fact, since the merger closed, Charter stock has more than doubled in value, from $227.41 on May 18, 2016 – the date the merger deal closed, to over $560 as of today, demonstrating the company’s current products, services, and pricing are more than adequate to deliver financial results that provide an excellent return on shareholder investments.[26]

We urge the Commission to carefully review claims that usage pricing and data caps deliver savings to any customer. Historically, any modest savings from discounts are more than absorbed by regular rate increases and occasional overage fees.

Charter’s claim that restricting it from imposing data caps “hamstrings Charter’s ability to allocate the costs of maintaining its network in a way that is efficient and fair for all of its customers—above-average, average, and light users alike” is simply not supported by the available evidence.[27] Except for the aforementioned, barely marketed offer of a slight discount for users agreeing to limit usage to 5 or 30 GB per month previously offered by Time Warner Cable (that has long been discontinued), and a somewhat similar discount offered in 2013 by Comcast which attracted almost no customers, no major cable operator or phone company has priced internet service fairly for “light users.”[28]

Charter, like many providers, already balances network costs and usage by offering different prices and speed tiers to meet the needs of its light, moderate and heavy users. The result is that Charter still collects increasing amounts of revenue from light and moderate use customers through periodic rate increases and heavy users often voluntarily upgrade to premium priced, faster speed tiers that more than cover any increased usage costs.

Every provider that implements data caps also claims those caps will affect almost none of their customers. Today, many providers choose a monthly usage allowance of around 1 TB, which sounds generous. But as we have shown above, average usage is rising quickly. But at the same time, costs to provide the service have not. The result has been costly broadband service that is also highly profitable. Giving a company like Charter permission to begin imposing usage caps in 2021 will leave many of its customers effectively trapped with that single monopoly provider, with the only alternative often a telephone company capable of providing only slow speed DSL service that does not meet the FCC’s standard for broadband speed.

Charter’s Performance Post-Merger is One of “Persistent Non-Compliance”

Stop the Cap! also reminds the Commission Charter Communications established a record of egregiously failing to meet its obligations to the State of New York. As a participant in the proceedings by the New York State Department of Public Service/Public Service Commission (NYDPS) to review Charter’s 2016 merger proposal, Stop the Cap! advocated for deal conditions including a requirement to expand its service area to cover unserved, rural areas of New York State.

The NYDPS ultimately approved the merger with the understanding Charter would expand service to 145,000 homes and businesses in largely rural, unserved areas on a strict timeline. In 2018, Charter failed to meet its merger obligations in what the NYDPS called “persistent noncompliance” and the Commission ultimately revoked the company’s franchise in New York State.[29]

The various instances of misconduct included:

• The company’s repeated failures to meet deadlines;
• Charter’s attempts to skirt obligations to serve rural communities;
• Unsafe practices in the field;
• Its failure to fully commit to its obligations under the 2016 merger agreement; and
• The company’s purposeful obfuscation of its performance and compliance obligations to the Commission and its customers.

After lengthy negotiations and additional fines and revised buildout requirements, the NYDPS reversed its decision. Still, Charter has a history of failing to meet its commitments, and we argue that makes the company’s commitments suspect.

Conclusion

A 7-year commitment to not data cap customers is a very small price to pay for the approval of a colossal merger worth more than $70 billion dollars. A deal is a deal. For customers, a guaranteed reprieve from the implementation of data caps and usage pricing provides solace in these extremely difficult times. It assures customers of internet service they can use as needed without worrying about a usage meter or overlimit fees.

Charter Communications has been extremely successful marketing its broadband products without data caps and clearly does not need them to achieve the kind of financial results that have doubled the company’s stock price. In most industries, adequate competition would dissuade companies from attempting to extract more money from customers with no discernable improvement in service. Absent that competition, some cable operators and phone companies have imposed arbitrary and unjustified usage caps as a result of market power.

To argue to also be allowed to impose similar unjustified usage caps as representative of a level playing field is ludicrous. It would be one of those rare cases where companies competed to see who could raise prices the most and the fastest.

Americans already pay too much for internet access. It is crucial for the FCC to do all it can to protect consumers and foster true competition that can demonstrably bring prices down and force unnecessary data caps from the marketplace. For now, the way to protect consumers is easy and clear: tell Charter a deal is a deal and the company has just two years left of a sensible, pro-consumer requirement that it not implement usage caps or usage-based billing.

[1] Stop the Cap! Comments on 2016 Merger of Charter, Time Warner Cable, et al. https://ecfsapi.fcc.gov/file/60001328856.pdf

[2] “Time Warner Cable shelves some Internet cap plans” https://abcnews.go.com/Technology/story?id=7368388&page=1

[3] “Time Warner Cable’s Incoming CEO Promises to Keep Unlimited Broadband Tier” https://stopthecap.com/2013/09/12/time-warner-cables-incoming-ceo-promises-to-keep-unlimited-broadband-tier/

[4] “Time Warner Cable Admits Usage-Based Pricing is a Big Failure – Only Thousands Enrolled” https://stopthecap.com/2014/03/13/time-warner-cable-admits-usage-based-pricing-is-a-big-failure-only-thousands-enrolled/

[5] “FCC Demands Details About Charter’s Suddenly Retired Usage Caps” https://stopthecap.com/2015/09/23/fcc-demands-details-about-charters-suddenly-retired-usage-caps/

[6] May 5, 2016 Memorandum Opinion and Order, page 4, executive summary number 7.

[7] May 5, 2016 Memorandum Opinion and Order, page 4, executive summary item numbers 8-9.

[8] 2016 Memorandum and Order, page 42, paragraph 84

[9] 2016 Memorandum and Order, page 44, paragraph 86

[10] https://www.xfinity.com/support/articles/data-usage-find-area

[11] Charter petition, page 22.

[12] “Access Issue Slows Rollout of Fiber Optic Network in Erie” https://www.goerie.com/news/20190609/access-issue-slows-rollout-of-fiber-optic-network-in-erie

[13] “FCC Grants Approval of AT&T-DirecTV Transaction” https://docs.fcc.gov/public/attachments/DOC-334561A1.pdf

[14] “Why Google Fiber stopped its plans to expand to more cities” https://www.sacbee.com/news/nation-world/national/article110655177.html

[15] “What You Need to Know About 5G in 2020” https://www.nytimes.com/2020/01/08/technology/personaltech/5g-mobile-network.html

[16] “5G Broadband is a threat to cable companies but execs aren’t worried.” https://www.cnbc.com/2019/12/01/5g-broadband-is-a-threat-to-cable-companies-but-execs-arent-worried.html

[17] “Charter seeks FCC OK to impose data caps and charge fees to video services” https://arstechnica.com/tech-policy/2020/06/charter-seeks-fcc-ok-to-impose-data-caps-and-charge-fees-to-video-services/

[18] “Broadband ARPU is Growing As Homes and Businesses Ask for Faster Speeds” https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/broadband-arpu-growing-as-homes-businesses-ask-for-faster-speeds-analysts-say-58637057

[19] 2016 Memorandum and Order, page 38, paragraph 78

[20] Comcast Xfinity Unlimited Data Pricing https://www.xfinity.com/support/articles/exp-unlimited-data

[21] Sparklight Unlimited Data Pricing https://www.sparklight.com/internet

[22] “Broadband usage spikes due to COVID-19” https://www.fiercetelecom.com/operators/due-to-covid-19-broadband-usage-spikes-47-q1-nearly-surpassing-all-2020-s-projections

[23] Comcast Xfinity Overlimit Fees https://www.xfinity.com/support/articles/data-usage-exceed-usage

[24] Charter 1^st Quarter 2020 Results https://ir.spectrum.com/news-releases/news-release-details/charter-announces-first-quarter-2020-results

[25] “Why Cable’s Broadband Network is Handling the Pandemic and Ready for the Future” https://www.ncta.com/whats-new/why-cables-broadband-network-is-handling-the-pandemic-and-ready-for-the-future?utm_source=NCTA+Updates&utm_campaign=a959c28eb0-EMAIL_CAMPAIGN_2020_04_29_05_11&utm_medium=email&utm_term=0_58679950e4-a959c28eb0-90061877

[26] Charter Historical Stock Pricing for May 18, 2016 https://www.marketwatch.com/investing/stock/CHTR/historical?siteid=mktw&date=may%2018%2C%202016&x=0&y=0

[27] Charter petition, page 23, paragraph 2

[28] “Comcast testing a 5GB plan for subscribers. But don’t worry, you get a $5 discount!” https://gigaom.com/2013/08/01/comcast-testing-a-5gb-plan-for-subscribers-but-dont-worry-you-get-a-5-discount/

[29] PSC RESCINDS CHARTER MERGER APPROVAL https://apps.cio.ny.gov/apps/mediaContact/public/view.cfm?parm=9FA0F8EE-EFFA-9F23-60B0A25F0043BDD8

Charter Communications is petitioning the Federal Communications Commission for permission to usage cap its internet customers two years before the FCC’s ban on the company imposing data caps runs out.

Charter, which does business as Spectrum, is seeking an early exit from some FCC-imposed deal conditions Charter agreed to as part of an approval of its 2016 merger with Time Warner Cable and Bright House Networks. Out of concern that Charter’s merger could harm emerging online video streaming competition, the FCC required the company to not charge fees to streaming services like Netflix and Hulu to carry video traffic to its customers and not impose data caps and usage based billing schemes that would limit online video consumption for seven years.

“New Charter’s increased broadband footprint and desire to protect its video profits will increase incentives to impose data caps and usage-based prices in order to make watching online video more expensive, and in particular more expensive than subscribing to a traditional pay-TV bundle,” the FCC concluded in its 2016 order approving the merger, with conditions. “For seven years, we prohibit New Charter from imposing data caps or charging usage-based pricing for its residential broadband service. This condition ensures that New Charter will continue Charter’s past pricing practices and protects subscribers from paying fees designed to make online video consumption more expensive leading subscribers to stick with a traditional pay-TV bundle.”

Charter last week argued that with cord-cutting at an all-time high and video streaming alternative cable and video packages flourishing, there is no reason to continue the seven-year ban on data caps, noting that many other large providers including AT&T, Cox, Altice, and Comcast are free to impose data caps of their own.

“They are able to do so because, unlike Charter, they are not subject to a condition that artificially and unilaterally restricts the packages available to their customers,” Charter argues in its filing. “The online video distribution marketplace is almost unrecognizable compared to what existed in 2016. […] Consumers have never had more online video choices.”

Charter said a sunset of the prohibition of data caps was now overdue.

“As data usage skyrockets, the [ban on data caps and usage-based billing] artificially hamstrings Charter’s ability to allocate the costs of maintaining its network in a way that is efficient and fair for all of its customers—above-average, average, and light users alike,” the company argued. “Charter should be afforded the same flexibility as other broadband providers to respond to developments in the market. In short, tremendous changes in the marketplace have rendered the [ban on data caps and usage-based billing] no longer necessary, and thus ending it in 2021 would be in the public interest.”

The FCC’s 2016 order approving the merger between Charter Communications, Time Warner Cable, and Bright House Networks, with a 7-year prohibition on data caps, was not unanimous. Separate statements from Republican Commissioners Ajit Pai and Michael O’Rielly were highly critical of most of the deal conditions the then-Democratic majority favored. Four years later, Pai now presides as chairman over a Republican-majority FCC that could take a favorable view of Charter’s request to end deal conditions early.

In 2016, Pai’s spokesperson complained about the imposition of deal conditions in the Charter-Time Warner Cable-Bright House merger, telling The Hill, “The FCC’s merger review process is badly broken. [Then FCC] Chairman Wheeler’s order isn’t about competition, competition, competition; it’s about regulation, regulation, regulation. It’s about imposing conditions that have nothing to do with the merits of this transaction. It’s about the government micromanaging the internet economy.”

Charter’s June 2020 filing focuses almost exclusively on streaming video competition to argue there is no longer any need to ban the company from imposing data caps. The FCC in 2016 concluded that data caps were a powerful anti-competitive weapon that could be used to keep streaming video competition from harming cable television packages. Charter argues that consumers now have many choices for streaming video, including cable-TV alternatives, which proves they have not engaged in anti-competitive behavior.

But Charter ignored the FCC’s other chief concern about data caps and usage billing (UBP): the lack of choice of broadband competitors.

“[…] Subscribers will continue to have no (or limited) alternative cable or fiber […] options when faced with data caps and UBP designed to deter online video consumption,” the FCC concluded.

The FCC hoped that by 2023, consumers would have more options for home broadband service, likely driving usage caps out of the marketplace.

“Seven years may also provide the high-speed […] provider market sufficient time to develop further with additional investments in fiber from established wireline […] providers, Wireless 5G technology, use of smartgrid fiber for broadband, additional overbuilding, and other potential competitors to traditional wired […] providers,” the FCC wrote. “It is our expectation that these developments will foster competition in the market to make the anticompetitive use of data caps less tenable in the future.”

Unfortunately, broadband competition remains fleeting in many parts of the United States, where only one provider offers broadband service that meets the FCC’s standard of 25 Mbps for downloads.

Ironically, Charter executives were against imposing data caps on their customers when the company was seeking approval to acquire Time Warner Cable and Bright House Networks.

FCC:

“Charter in particular emphasizes its aversion to data caps, stating that instead of enforcing usage limits it chooses to market the absence of data caps as a competitive advantage. Charter also argues there is a strong business case for not implementing caps. Specifically, Charter explains that it terminated its enforcement of the usage limits trial in the AUP in January 2012 because the benefits to customers of continuing the trial (minimizing bandwidth consumption to preserve a positive Internet experience) would not exceed the program’s costs. Charter also states that caps create marketing challenges because they complicate consumer purchasing decisions. Furthermore, Charter argues that data caps increase churn among subscribers. Finally, Charter states that it plans to distinguish itself from its competitors based largely on the quality and speed of its broadband offerings and that data caps undermine that marketing message.”

But the FCC remained unconvinced by Charter’s statements. In a review of confidential internal company documents, the FCC found multiple instances where Time Warner Cable had not completely abandoned the idea of data caps, despite multiple high-profile consumer backlashes against the idea.

“We also note that despite Time Warner Cable’s relative lack of success in implementing usage-based billing, its internal documents leave no doubt that it is also incentivized to use data caps to protect its [cable TV] business,” the FCC concluded.

Four years later, Charter is among many cable operators reporting staggering losses of video customers that have chosen to “cut the cord” on cable television and have switched to a streaming competitor. If an incentive to data cap customers to protect video revenue was there in 2016, it stands to be much stronger today in 2020.

The FCC is now seeking public comment on Charter’s proposal until July 22, 2020. Stop the Cap! plans to file extensive comments on the matter and will shortly publish a guide for readers offering sample letters that can be sent to the FCC on this issue.

Hulu + Live TV is celebrating its successful signup of over an estimated 2.7 million customers with a major rate increase the company says reflects the service’s true value in the marketplace.

Most customers will see their subscription price increase by $10 a month, from $45 to $55 a month.

“Today, we’re letting customers know that the monthly base price of Hulu + Live TV will increase to $54.99, beginning December 18,” the company wrote in a blog post. “The new price better reflects the substantial value of Hulu + Live TV and allows us to continue offering all of the popular live news, sports and entertainment programming included in the plan.”

Craig Moffett, a chief analyst at MoffettNathanson, told readers of his Cord Cutting Monitor quarterly newsletter that Hulu + Live TV, which combines Hulu’s on demand plan with a selection of about 60 streaming live TV networks, is likely America’s largest cable TV replacement service, topping Sling TV’s estimated 2.686 million customers.

Moffett also reported that cord cutting is becoming a more costly proposition.

“Eighteen months ago, the cheapest video packages for vMVPDs were clustered around $30 to $35 per month,” Moffett wrote. “Eighteen months later, most are in the $45 to $50 per month range, an increase of roughly 50%.”

Online video-driven broadband usage has reached an all-time high, increasing 27% in just one year, with internet-only customers now consuming an average of 395.7 GB — almost double the average 209.5 GB consumed by households that still have traditional cable television.

The OpenVault Broadband Industry Report, issued quarterly, reports that significant differences in usage between households with a traditional cable TV package and those that have cord-cut make it clear online video is driving much of the increased usage.

“Cord cutting behavior is impacting bundling and bandwidth consumption,” OpenVault explained. “Service providers rode a significant wave over the past ten years with triple and double-play bundling of services. There is evidence to suggest that wave has crested, as more consumers opt for internet-only packages.”

The results suggest the one effective tool providers still have to curtail heavy video streaming is mandatory data caps or consumption-based billing. An internet provider with a low data cap deters online video streaming, protecting traditional cable television revenue.

In the last year, the number of “power users” (those using 1 TB per month) doubled to 4.2% of all subscribers, with “power users of the future” (2+ TB of usage a month) more than doubling from 0.16% last year to 0.38% this year. “Power users” of 1 TB or more account for 6.5% of all internet-only households vs. 2.2% in homes still subscribing to a bundle of TV and internet service.

The clearest evidence of how data caps deter usage is found among “power users” that use 1 TB or more of data each month. With several large providers enforcing a 1 TB data allowance, OpenVault found dramatic differences in usage patterns between uncapped and capped customers. As customers become wary of exceeding their 1 TB cap, many “power users” ration usage out of fear of incurring overlimit fees, especially towards the end of a billing cycle.

Subscribers treat an assigned “data allowance” more like a hard data cap. OpenVault found that with flat-rate/unlimited plans, the percentage of power users is 32% greater than those with usage-based billing, and the percentage of subscribers using over 2 TB is 76% greater on unlimited plans where customers don’t have to fear using up their allowance.

By the year 2022, 60% of the world’s population will be connected to the internet and 82% of online traffic will come from streaming video.

Those are the conclusions found in Cisco’s newest Visual Networking Index (VNI), based on independent analyst forecasts and real-world network usage data tracked by the networking equipment manufacturer.

“By 2022, more IP traffic will cross global networks than in all prior ‘internet years’ combined up to the end of 2016,” Cisco predicts. “In other words, more traffic will be created in 2022 than in the 32 years since the internet started.”

Key predictions for 2022

Cisco’s VNI looks at the impact that users, devices and other trends will have on global IP networks over a five-year period. From 2017 to 2022, Cisco predicts:

1. Global IP traffic will more than triple
   
   • Global IP traffic is expected to reach 396 exabytes per month by 2022, up from 122 exabytes per month in 2017. That’s 4.8 zettabytes of traffic per year by 2022.
   • By 2022, the busiest hour of internet traffic will be six times more active than the average. Busy hour internet traffic will grow by nearly five times (37 percent CAGR) from 2017 to 2022, reaching 7.2 petabytes¹ per second by 2022. In comparison, average internet traffic will grow by nearly four times (30 percent CAGR) over the same period to reach 1 petabyte by 2022.

     ¹ A petabyte is equal to 1,000 terabytes or one million gigabytes.

2. Global internet users will make up 60 percent of the world’s population
   
   • There will be 4.8 billion internet users by 2022. That’s up from 3.4 billion in 2017 or 45 percent of the world’s population.
3. Global networked devices and connections will reach 28.5 billion
   • By 2022, there will be 28.5 billion fixed and mobile personal devices and connections, up from 18 billion in 2017—or 3.6 networked devices/connections per person, from 2.4 per person.
   • More than half of all devices and connections will be machine-to-machine by 2022, up from 34 percent in 2017. That’s 14.6 billion connections from smart speakers, fixtures, devices and everything else, up from 6.1 billion.
4. Global broadband, Wi-Fi and mobile speeds will double or more
   • Average global fixed broadband speeds will nearly double from 39.0 Mbps to 75.4 Mbps.
   • Average global Wi-Fi connection speeds will more than double from 24.4 Mbps to 54.0 Mbps.
   • Average global mobile connection speeds will more than triple from 8.7 Mbps to 28.5 Mbps.
5. Video, gaming and multimedia will make up more than 85 percent of all traffic
   • IP video traffic will quadruple by 2022. As a result, it will make up an even larger percentage of total IP traffic than before—up to 82 percent from 75 percent.
   • Gaming traffic is expected to grow nine-fold from 2017 to 2022. It will represent four percent of overall IP traffic in 2022.
   • Virtual and augmented reality traffic will skyrocket as more consumers and businesses use the technologies. By 2022, virtual and augmented reality traffic will reach 4.02 exabytes/month, up from 0.33 exabytes/month in 2017.

Regionally, Asian-Pacific internet users are expected to use far more internet data than North Americans — 173 exabytes a month by 2022 vs. 108 exabytes in North America. Usage caps, usage-based pricing, and overall slower internet speeds in the U.S. and Canada have slowed growth in new high-bandwidth internet applications. The prevalence of low-speed DSL in rural areas also restricts potential traffic growth. Large parts of the Asia-Pacific region use very high-speed fiber to the home technology.

The slowest growing regions — Latin America and the Middle East/Africa, which lag behind in internet penetration, often apply low usage caps or bandwidth restrictions and often do not have the ability to financially scale growth to meet demand. Even by 2022, Latin America will generate only 19 exabytes of traffic per month.