Is AT&T Violating Net Neutrality?

I got a text on my AT&T cellphone last month that told me that my wireless plan now includes sponsored data. Specifically they told me that I could now stream movies and other content from DirecTV or U-Verse TV without the video counting against my monthly data cap. This has been available to AT&T post-paid customers for a while, but now is apparently available to all customers. What I found most interesting about the message was that it coincided with the official end of net neutrality.

AT&T is not the first cellular company to do this. Verizon tried this a few years ago, although that attempt was largely unsuccessful because they didn’t offer much content that people wanted to watch. T-Mobile does something similar with their Binge-on program, but since most of their data plans are unlimited, customers can watch anything on their phones, not just the Binge-on video.

The sponsored data from AT&T would be a direct violation of net neutrality if it was still in effect and is a textbook example of paid prioritization. By excusing the DirecTV content from cellular data caps they have created an advantage for DirecTV compared to competitors. It doesn’t really matter that AT&T also happens to own DirecTV, and I imagine that AT&T is now shopping this same idea around to other video providers.

So what is wrong with what AT&T is doing? Certainly their many customers that buy both AT&T cellphones and DirecTV will like the plan. Cellular data in the US is still some of the most expensive data in the world and letting customers watch unlimited video from a sponsored video provider is a huge benefit to customers. Most people are careful to not go over monthly data limits, and that means they carefully curtail watching video on cellphones. But customers taking advantage of sponsored video are going to watch video that would likely have exceeded their monthly data cap – it doesn’t take more than a handful of movies to do that.

AT&T has huge market power with almost 140 million cellphones users on their network at the end of last year. Any video provider they sponsor is going to gain a significant advantage over other video providers. AT&T customers that like watching video on their cellphones are likely to pick DirecTV over Comcast or any other video provider.

It’s also going to be extremely tempting for AT&T to give prioritized routing to DirecTV video – what means implementing the Internet fast lane. AT&T is going to want their cellular customers to have a quality experience, and they can do that by making sure that DirecTV video has the best connections throughout their network. They don’t necessarily have to throttle other video to make DirecTV better – they can just make sure that DirectTV video gets the best possible routing.

I know to many people the AT&T plan is going to feel somewhat harmless. After all, they are bundling together their own cellular and video products. But it’s a short step from here for AT&T to start giving priority to content from others who are willing to pay for it. It’s not to hard to imagine them offering the same plan to Netflix, YouTube or Facebook.

If this plan expands beyond AT&T’s own video, we’ll start seeing the negative impacts of paid prioritization:

  • Only the biggest companies like Netflix, Facebook or Google can afford to pay AT&T for the practice. This is going to shut out smaller video providers and start-ups. Already in the short history of the web we’ve seen a big turnover in the popular platforms on the web – gone or greatly diminished are earlier platforms like AOL, CompuServe and Prodigy. But with the boost given by paid prioritization the big companies today will get a step-up to remain as predominant players on the web. Innovation is going to be severely hampered.
  • This is also the beginning of a curated web where many people only see the world through the filter of the predominant web services. We already see that phenomenon a lot today, but when people are funneled to only using the big web services this will grow and magnify.
  • It’s not hard to imagine the next step where we see reduced price data plans that are ‘sponsored’ by somebody like Facebook. Such platforms will likely make it a challenge for customers to step outside their platform. And that will lead to a segmentation and slow death of the web as we know it.

Interestingly, the Tom Wheeler FCC told AT&T that this practice was unacceptable. But through the change of administration AT&T never stopped the practice and is now expanding it. It’s likely that courts are going to stay some or all of the net neutrality order until the various lawsuits on the issue get resolved. But AT&T clearly feels emboldened to move forward with this, probably since they know the current FCC won’t address the issue even if net neutrality stays in effect.

The Consequences of Killing Network Neutrality

It looks almost certain that the FCC is going to kill Title II regulation, and with it net neutrality. Just as happened the last go around the FCC has already received millions of comments asking it to not kill net neutrality. And if you read all of the press you find dire predictions of the consequences that will result from the death of net neutrality. But as somebody who has a decent understanding of the way that broadband and the associated money flows in the industry I don’t think it will be as dire as critics predict, and I think there will also be unanticipated consequences.

Impact on Start-ups – the Cost of Access. One of the dire predictions is that a new start-up company that uses a lot of broadband – the next Netflix, Vine or Snapchat – won’t be able to gain the needed access with carriers, or that their access will be too expensive. Let me examine that conjecture:

  • Let me follow the flow of money that a start-up needs to spend to be on the web. Their direct largest cost is the cost of uploading their content onto the web through an ISP. The pricing for bulk access has always favored the bigger players and it’s more expensive today for a company that wants to upload a gigabyte per day compared to somebody that uploads a terabyte.
  • The normal web service doesn’t pay anything to then deliver their content to customers. Customers buy various speeds of download and use the product at will. Interestingly, it’s only the largest content providers that might run into issues without net neutrality. The big fights a few years ago on this issue were between Netflix and the largest ISPs. The Netflix volumes had grown so gigantic that the big ISPs wanted Netflix to somehow contribute to the big cost of electronics the ISPs were expending to distribute the service. The only way that there would be some cost to start-ups to terminate content would be if the ISPs somehow created some kind of access fee to get onto their network. But that sounds largely impractical. Bytes are bytes and they don’t exactly contain the name and billing address of the party that dumped the traffic on the web.
  • Some content like live video is a complicated web product. You can’t just dump it on the web at one location in the country and hope it maintains quality everywhere it ends up. There are already companies that act as the intermediary for streaming video to carry out the caching and other functions needed to maintain video quality. Even the big content providers like SlingTV don’t tackle this alone.
  • Finally, there will arise new vendors that will assist start-ups by aggregating their traffic with others. We already see that today with Amazon which is bundling the content of over 90 content providers on its video platform. The content providers benefit by taking advantage of the delivery mechanisms that Amazon has in place. This is obviously working and it’s hard to see how the end of net neutrality would stop somebody like Amazon from being a super-bundler. I think wholesalers like Amazon would fill the market gap for start-ups.

Paid Prioritization. The other big worry voiced by fans of Title II regulation is that it stops paid prioritization, or Internet fast lanes. There are both good and bad possible consequences of that.

  • It’s silly to pretend that we don’t already have significant paid prioritization – it’s called peering. The biggest content providers like Google, Netflix and Amazon have negotiated peering arrangements where they deliver traffic directly to ISPs in specific markets. The main benefits of this for the content providers is that it reduces latency and delay, but it also saves them from buying normal uploads into the open Internet. For example, instead of dumping content aimed at Comcast in Chicago onto the open web these big companies will directly deliver the Chicago-bound traffic to Comcast. These arrangements save money for both parties. And they are very much paid prioritization since smaller content providers have to instead route through the major Internet POPs.
  • On the customer side of the network, I can envision ISPs offering paid prioritization as a product to customers. Customer A may choose to have traffic for a medical monitoring company always get a priority, customer B might choose a gaming service and customer C might choose a VoIP connection. People have never had the option of choosing what broadband connections they value the most and I could see this being popular – if it really works.
  • And that leads into the last big concern. The big fear about paid prioritization is that any service that doesn’t have priority is going to suffer in quality. But will that really happen? I have a fairly good broadband connection at 60 Mbps. That connection can already deliver a lot of different things at the same time. Let’s say that Netflix decided to pay my ISP extra to get guaranteed priority to my house. That might improve my Netflix reception, although it already seems pretty good. But on my 60 Mbps connection would any other service really suffer if Netflix has priority? From what I understand about the routing of Internet traffic, any delays caused by such prioritization would be miniscule, probably in microseconds, which would be nearly imperceptible to me. I can already crash my Internet connection today if I try to download more content than it can handle at the same time. But as long as a customer isn’t doing that, I have a hard time seeing how prioritization will cause much problem – or even why somebody like Netflix would pay an ISP extra for it. They are already making sure they have a quality connection through peering and other network arrangements and I have a hard time understanding how anything at the customer end of the transaction would make much difference. This could be important for those on slow broadband connections – but their primary problem is lack of broadband speed and they are already easily overwhelmed by too much simultaneous traffic.

I am not as fearful of the end of net neutrality as many because I think the Internet operates differently than what people imagine. I truly have a hard time seeing how the ending net neutrality will really change the way I receive broadband at my home. However, I do have big concerns about the end of Title II regulation and fear things like data caps and of my ISP using my personal information. I think most of folks real concern is about Title II regulation, but that’s too esoteric for most folks and we all seem to be using the term ‘network neutrality’ as a substitute for that.