Senators Criticize AT&T for Apparently Favoring HBO Max by Not Counting Streaming Against Data Caps

June 4, 2020 — Sens. Ed Markey, D-Mass., Ron Wyden, D-Ore., and Richard Blumenthal, D-Conn., penned a letter to AT&T CEO Randall Stephenson, rebuking him for not counting HBO Max usage against users’ monthly data caps.

AT&T owns HBO, a relationship the senators claimed violates the company’s stated interest in a “free and open internet.” A report from the Verge found that although any company can be part of AT&T’s “sponsored data” system, where companies can pay to excuse users from overage charges, the only streaming services utilizing the system were owned by AT&T.

Obama-era net neutrality legislation made this behavior illegal, but in 2017 the Federal Communications Commission voted to strike down the regulations. Now, HBO Max can evade data caps by paying its parent company.

“The network is the plumbing, and the content is the water. And you’re seeing water and the plumbing kind of coming together,” said Tony Goncalves, an AT&T executive who oversees HBO Max.

Despite the FCC’s  2017 decision, a policy review just a year earlier stated that the agency was concerned about the presentation of “significant risks to consumers and competition in downstream industry sectors because of network operators’ potentially unreasonable discrimination in favor of their own affiliates.”

The letter expressed concern that AT&T’s behavior shows preferential treatment and discourages normal marketplace competitiveness.

“The Trump FCC may have gutted critical net neutrality protections, but AT&T nonetheless has a responsibility to avoid any policies or practices that harm consumers and stifle competition,” it read.

Practically speaking, the senators’ power is limited, but they requested a formal explanation from the company by June 25.

Given the explosive national response to the repeal of net neutrality, the senators may potentially be able to drum up public backlash sufficient to force the company to reconsider.