Hybrid Proposals Discussed at USTelecom Panel
AT&T’s net neutrality proposal to bar prioritization dictated by broadband providers, but allow them if requested by customers, would address concerns about paid prioritization while passing muster in the courts, said Vice President-Federal Regulatory Hank Hultquist, on a USTelecom open Internet panel Friday. The panel included two hybrid proposals recently cited by Wireline Chief Julie Veach as being considered by the FCC in the midst of the Section 706/Title II debate. AT&T officials met with the FCC chief technology officer and Office of Strategic Planning officials on Sept. 29, said an ex parte notice in docket 14-28, about how AT&T business customers can direct prioritization of certain types of traffic.
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Both approaches involve “putting a square peg in a round hole,” said Center for Democracy & Technology CEO Nuala O'Connor. CDT offered some hybrid approaches in July comments, including regulating the relationship between IP and edge provider under either Section 706 or Title II. The Internet is shaped by innovation, she said, and “requires policy innovation.”
Panelists -- who also included Anna-Maria Kovacs, visiting senior scholar at Georgetown University, and Kellogg Huber’s Sean Lev, the former FCC general counsel who argued the net neutrality case -- said they believe a compromise can be reached despite the polarized debate. Compromises tend to come together in the last minute, Lev said. While it wouldn’t satisfy all 3.7 million commenters, a compromise could satisfy “a broad range of constituencies,” he said. Hutlquist agreed a deal could be reached, but it’s unknown if it would be tied up in the courts.
The U.S. Court of Appeals for the D.C. Circuit threw out the net neutrality order because by not allowing individualized negotiations between ISP and edge providers, it treated the broadband providers as common carriers, which it ruled is impermissible under Section 706, Lev said. He didn’t take sides in the Section 706/Title II debate at the discussion. “There’s a lot of gray area as to what’s common carriage,” which gives the agency “a lot of leeway” in crafting net neutrality rules under Section 706, Lev said: The question remains how to find a way to satisfy industry and public interest groups.
Under AT&T’s proposed approach, an avid online game player could ask his ISP to prioritize gaming traffic, Hultquist said. The ISP and the gaming provider could work out an arrangement on how to make it happen, said Hultquist, who said whether payments would be allowed is an issue the agency doesn’t need to deal with now. Bill Smith, president of technology operations, AT&T’s Hultquist, Bob Quinn, senior vice president, and Gary Phillips, general attorney, were involved in the meeting with FCC officials, according to the ex parte filing. Responding to AT&T’s proposal, O'Connor said Friday that being asked to say something positive about paid prioritization is like a friend being asked to say something nice about her ex-husband. The idea in which a customer could be asked to pay more “concerns” her, she said.
To Kovacs, Section 706 is a “simple and clear path,” while Title II would invite litigation that could deter investors. She likened Section 706 to making an ice sculpture, while Title II would be like going to Mount Everest, blowing up dynamite, “and once all the avalanches are done, you're left with … a lot of collateral damage.”