Pro-706 Groups Focus on Convincing FCC of Alternatives to Title II

The pro-706 argument is not new, and Title II proponents said they're still not persuaded by AT&T’s proposal to bar paid-prioritization if they are not user-driven, or by Comcast’s proposal to create a rebuttable presumption against paid prioritization. That the comments by the American Cable Association, Comcast and NCTA referred to the proposals “represents a focusing of the 706 arguments on viable options without taking the extreme step of reclassification,” an NCTA spokesman told us.

In July comments, AT&T proposed barring paid prioritization that is not user-driven as a “commercially unreasonable” practice under Section 706. Banned would be the kind of arrangements public interest groups oppose, in which edge providers could buy so-called fast lanes. Allowed would be “user-driven” prioritization, in which small- or medium-sized businesses, healthcare providers or nonprofit organizations would have the flexibility “to make the Internet work better for their own needs,” AT&T said. “For example, an AT&T customer might choose to prioritize latency- and jitter-sensitive VoIP packets or video conference packets over ordinary web browsing packets,” AT&T’s July filing said. AT&T said net neutrality proponents have said user-driven prioritization is permissible.

In short, AT&T argued that banning all paid prioritization would run into the U.S. Court of Appeals for the D.C. Circuit’s concerns in its January decision that all-encompassing rules would be akin to treating ISPs as common carriers. By prohibiting certain practices, but allowing others, AT&T said a Section 706 approach would avoid the court’s concerns. The approach “would not amount to prohibited per se common-carriage regulation because it would permit broadband providers to engage in user-directed prioritization as well as other individualized arrangements with edge providers,” AT&T’s filing Monday said.

Comcast’s reply (http://bit.ly/1AQPqLf) also stressed Title II alternatives, and cited AT&T’s proposal and its own idea. The proposals offer “a strong basis for adopting an effective and legally defensible prohibition against anticompetitive paid prioritization arrangements,” Comcast said. It said each proposal would “leave some room for individualized bargaining between ISPs and edge providers, and that is all that is required to avoid subjecting broadband to common carriage” regulation.

Comcast opposes reclassification “because it would harm future innovation and investment in broadband and because reclassification is not necessary to put in place strong and enforceable Open Internet protections,” said Executive Vice President David Cohen in a blog post (http://bit.ly/1qRKwMP).

Though their filings were not available before our deadline, public interest groups said they continued to favor a Title II approach and opposed the AT&T and Comcast proposals. There’s no guarantee allowing user-directed paid prioritization would mean paid prioritization rules under Section 706 wouldn’t be thrown out, said Public Knowledge Senior Vice President Harold Feld. “The problem with AT&T’s approach continues to be that we have no idea whatsoever what the D.C. Circuit considers ... too close to a ‘common carrier’ rule.” While the court “appeared to hint that some form of restriction might be OK, it is not clear that imposing a ‘user directed’ condition would pass muster,” Feld said. “AT&T’s argument here is kind of cute, but not good enough to pass muster in court,” said Free Press Policy Director Matt Wood. The FCC can impose strong restrictions against anticompetitive paid prioritization agreements under Section 706, and, “could do so with broad support from the very ISPs that would be subject to any restrictions,” said NCTA’s reply. Also citing the Comcast and AT&T proposals, it said that “some of the largest ISPs specifically propose possible approaches for dramatically limiting paid prioritization under Section 706.”

The FCC proposed rules would also pass court muster, USTelecom said in its latest filing, because it “allows sufficient room for broadband providers to negotiate arrangements with edge providers.” The commission should leave some rule for commercial arrangements between broadband providers and edge providers, USTelecom said. “This nascent market has not even begun to develop, as illustrated by the fact that there has not been a single instance of an edge provider paying a broadband provider for access or prioritized access to end users. Maintaining flexible rules for the future development of the Internet is essential,” because it’s unknown what the best network management practices, and pricing and service models, will be in the future, USTelecom said.

More than 772,000 Americans filed comments opposing any regulation of the Internet, American Commitment, a free-market advocacy group, said in a news release (http://bit.ly/1uB8f5l) Monday. The group said it will organize emails and phone banks starting Tuesday to call on Congress to oppose imposing regulations. Section 706 should be used to “restore the rules” thrown out by the D.C. court, said the Internet Innovation Alliance said in reply comments (http://bit.ly/1tWQWsV). “Reliance on Section 706 enables proper balance between necessary regulation to advance goals such as consumer protection and the imperative of attracting new investment to broadband to ensure further deployments of ever-faster systems that will support the applications of tomorrow.”