Delayed Comcast Cap Fails to Quell Qualms

Local and state officials oppose Comcast capping the amount of broadband data residential subscribers can use monthly without financial penalties. That's despite the cable operator pledging to delay implementation until summer. Comcast and Pennsylvania Attorney General Josh Shapiro (D) said Wednesday the ISP will pause overage fees until August on the 1.2 TB limit in Eastern and Northeastern states (see 2102030017). Baltimore City Council Member Zeke Cohen (D) responded, “We will not be satisfied until the data caps are removed.”

Saying the limits don't affect many customers as the cable ISP contends doesn't fly with NATOA General Counsel Nancy Werner, saying Comcast could get more pushback in August if it brings back the standards. She said such limitations might drive broader discussion whether such thresholds violate policies on expanding broadband access and affordability.

"It’s certainly an issue we will look into,” said a spokesperson for Maryland Attorney General Brian Frosh (D). Baltimore City Council Democrats Cohen, Ryan Dorsey and Kristerfer Burnett urged Frosh last week to investigate possible price gouging. Dorsey sees “an obvious corollary between the increase in price and the increased demand and need for internet to meet basic, everyday needs,” he said in an interview.

Postponing the cap didn’t resolve concerns of Maryland's Montgomery County, which supports an AG probe. “In a period of COVID, we should not be having data caps,” said ultraMontgomery Program Director Mitsuko Herrera. Subscribers might be confused how close they are to hitting the cap, and fees seem likely to hurt the county’s urban and low-income subscribers the most, she said. Comcast should be more transparent about how many customers exceed 1.2 TB, she said. A “bigger concern” is what tomorrow’s cap will be, she added.

Comcast’s delay is a “short-term win,” and Massachusetts state Rep. Andy Vargas (D) won’t withdraw his bill to ban wireline ISPs from capping data, disconnecting customers, raising prices or creating new fees during the pandemic (see 2101280044), he told us Thursday. “We want to send a message that any [ISP] should not have these data caps.” Constituents say 1.2 TB isn’t enough, he said. Vargas, who, with other lawmakers, wrote Comcast about the issue last year, filed HD-663 after the ISP wouldn’t voluntarily roll back the data cap, he said. He said it has more than 60 bipartisan co-sponsors. State Sen. Harriette Chandler (D) filed companion SD-622.

“All options have to be on the table,” including federal action and the Massachusetts AG investigating, said Vargas: “The best solution to this is having a strong federal regulatory framework.” He said states won’t wait.

Comcast Responds

The cable operator is getting flack in its hometown, too.

Comcast hometown Philadelphia shares data cap concerns, a city spokesperson said: “The City has engaged -- and will continue to engage -- in productive conversations with Comcast on the issue.”

Asked why it paused the 1.2 TB plan rollout, Comcast said in recent weeks it has "come to understand that even with the extensive notice period we were initially providing, it would be helpful for Northeast customers to have a longer runway to understand the new plan and then make any necessary changes, based on their needs."

It said usage fluctuates, but the typical Xfinity internet customer uses less than 400 GB monthly, "which does not come close to 1.2 TB." It said 1.2 TB would accommodate a 3,500-hour videoconference or streaming 500 hours of HD-quality video. It said the small percentage of customers who use more than 1.2 TB of data monthly "generate the greatest demand for network development and capacity," and the data plan shifts more of the financial burden on them. It said about 5% of customers generate more than 20% of network usage and are the chief drivers for capacity upgrades, "which drive significant network investment costs."

Whether Comcast gets similar pushback once the pause is over will depend on the extent of customer outcry there is, said Public Knowledge Senior Vice President Harold Feld. He said such gripes could come from different states and communities next time.

Local Constraints

While the data cap could reemerge as an issue for states and localities when the pause is over, in many cases, they may lack tools beyond the bully pulpit to tackle it, experts said. Many states' hands are tied, as their public utilities commissions don't have jurisdiction over broadband, said Spiegel & McDiarmid's Tim Lay.

Feld said at least some states do have the tools, citing New York's 2017 consumer fraud action against Charter Communications for broadband speeds (see 1702010048). Legislatures in states that don't can adopt them, he said.

Baltimore City Council members said they will meet with Comcast this week about the policy they describe as "digital redlining." The cabler is Baltimore’s biggest ISP, with a 2016 franchise agreement expiring in 2026. Baltimore can’t directly restrict Comcast until the franchise comes up for renewal, Dorsey said. “Even then, I’m not yet certain the extent to which we may be preempted from placing certain constraints into the language of that franchise agreement.”

Cohen would support state legislation like that on the table in Massachusetts, he said. Baltimoreans have few alternatives to Comcast, he said. “The digital divide in Baltimore is deep.” Before the virus, 40% of residents didn’t have wireline internet access, with minorities making up a disproportionate number, he said. With home internet usage surging amid the pandemic, adding a fee for overages “is arbitrary, capricious and will fall hardest on Baltimoreans who are relying on the internet for school, for work and, in some cases, for medical appointments,” he said. It’s “predatory and truly puts our most disadvantaged residents further behind.”

“Show us the data” proving 1.2 TB monthly is enough, said Burnett. Comcast has “been extremely reluctant to actually release how many users” exceed that amount and how much data most people use, he said. Dorsey asked how Comcast came up with the number, which he said seems “entirely arbitrary.” Even if the limit affected only three Baltimoreans, it would be too many, said Cohen: Customers “should pay the rate they signed up for.” Comcast has “not been a good partner,” said Cohen. Tuesday’s announcement that Comcast will double Internet Essentials download speeds (see 2102020048) was a “result of public pressure and organizing,” he said. Burnett said he found the timing “incredibly interesting, considering we had public hearings on this before,” at which Comcast argued their previous speed was enough.

The previous FCC “went out of its way to constrain what local governments can do under cable franchises to address broadband,” said Montgomery County’s Herrera. She urged the new commission to review those restraints. “Stop handcuffing local authorities that are trying to protect consumers.”

Editor's note: This article is one in an ongoing series about how the pandemic is affecting the communications sector and its customers. Previous reports have examined the impact on remote law firm work (see here), on 911 (see here) and on residential broadband (such as here).