Simington argued that regulating data limits would harm customers, using an analogy about the hypothetical regulation of coffee refills:
Suppose we are another FCC, the Federal Coffee Commission, and instead of regulating the price of coffee (which we have promised not to do), we instead implement a regulation that entitles consumers to free refills on their coffee . What effects could follow? I predict that three things could happen: either cafes stop serving small coffees, or cafes charge a lot more for small coffees, or cafes charge a little more for all coffees.
Simington then compared the capacity of broadband networks with the coffee serving capacity of coffee shops. He said tiered coffee pricing “can increase overall revenue for the cafe,” which can be invested “in more seating, more cafes and faster coffee brewing.”
Simington is against rate regulation in general and said the regulation of usage-based plans (also called data caps) is just rate regulation by another name. “While it is only a Notice of Inquiry because it is the first step toward further rate regulation, I cannot support the item we created here. I disagree,” Simington wrote.
Carr: Plans with data limits “more affordable”
Carr's statement read: “I disagree with today's NOI because I cannot support the Biden-Harris administration's inexorable march toward rate regulation and because the FCC clearly does not have the legal authority to do so.”
Carr pointed to the recent 6th Circuit court of appeals ruling, which blocked the Rosenworcel FCC's attempt to reinstate net neutrality rules under Title II of the Communications Act. Judges blocked enforcement of net neutrality rules until the court issues a final ruling, saying broadband providers are likely to win the case on the merits.
Carr said the FCC is “starting[ing] on the path of direct tariff regulation… by requesting comments on the control of the price of broadband capacity ('data limits'). Prohibiting customers from purchasing capped plans – which are cheaper than unlimited plans – necessarily regulates the service rates they pay for.”
