ISPs Must Pledge to Avoid Paid Prioritization, Leahy Says
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., wants major ISPs to pledge to abstain from paid prioritization deals. He fired off letters Thursday to AT&T, Charter Communications, Time Warner Cable and Verizon requesting such pledges. Earlier this week, he sent a letter to Comcast asking for similar promises, expressing big fears about what paid prioritization would do to the Internet (see 1410200046).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“Meaningful pledges” from ISPs are needed, Leahy said (http://1.usa.gov/1rrLueB). “In a world of increasing broadband consolidation, Internet customers and Internet content providers face fewer options than ever to gain access online,” Leahy wrote. “A network that discriminates cannot be checked by market forces when customers and content providers have few -- if any -- viable alternatives to choose from.”
Leahy personalized many of the letters, citing from the ISPs’ comments to the FCC about paid prioritization deals. He pointed to how AT&T, Comcast and Verizon had said they lacked interest in creating Internet fast lanes. In his letter to TWC CEO Rob Marcus, Leahy said it had said no ISP had formed Internet fast and slow lanes or showed intentions to do so. “I welcome that assertion, but I remain gravely concerned that if such agreements are permitted, market incentives may drive AT&T and other ISPs to change that position in the future,” Leahy said in the letter to AT&T CEO Randall Stephenson. In letters to AT&T and Comcast, Leahy mentioned the pending transactions before antitrust regulators: the proposed purchase of DirecTV in the case of AT&T and Time Warner Cable for Comcast.
The FCC’s court-vacated 2010 net neutrality rules, which still bind Comcast due to a condition in acquiring control of NBCUniversal, “should be viewed as a minimum level of protection,” extended to all broadband customers, Leahy said. He asked that the ISPs “pledge not to engage in any activity that prioritizes affiliated content or services over unaffiliated content or services, helping to ensure that vertical integration does not threaten competition online.”
Leahy has held multiple hearings on net neutrality this year and introduced legislation that would ban paid prioritization deals. He has not weighed in on what legal authority the FCC should use to create its rules, a hotly contested issue dominating public debate now. Some Democratic lawmakers in both chambers have pressed the FCC to reclassify broadband under Communications Act Title II, most recently House Communications Subcommittee ranking member Anna Eshoo, D-Calif. In these letters, Leahy dismissed antitrust law as providing sufficient net neutrality protections, saying that would offer “an ad-hoc, after-the-fact solution.”
ISPs did not immediately respond to the letter. Charter and Verizon declined comment. AT&T also has no comment now but will respond, a spokesman said. Comcast is reviewing the letter, a spokeswoman said earlier this week. TWC didn’t comment.
“We appreciate Senator Leahy's focus on this issue, but we believe firmly that the FCC must put strong rules in place too -- no matter what these companies pledge to do or not do,” Free Press Policy Director Matt Wood told us. To protect “against the harms” Leahy points to, the agency will need to reclassify broadband as a Title II telecom service, Wood said.
It’s unclear how ISPs will really view this request for a pledge, Telecommunications Industry Association Vice President-Government Relations Danielle Coffey told us, saying she’s curious to see the responses. She commended Leahy for “attempting to create certainty in the marketplace, which benefits manufacturers because it encourages investment, but we should be mindful of getting out ahead of future unknowns.”
Leahy's request for pledges may not be “the proper forum for these sorts of decisions,” emailed Doug Brake, a telecom policy analyst with the Information Technology and Innovation Foundation. He backs “narrow opportunities” for prioritization deals and thus wants to preserve some market flexibility, with prioritization considered on “a case by case basis with an eye on consumer or competitive harm.”
“To the extent we want decisions based on technical and economic fact and not broader politics, there is good reason for leaving these issues with an independent, expert regulator,” Brake added. “At the same time, I worry I’m on the losing side of the paid prioritization debate, so these letters may help reify carrier commitments in a form that can help the Commission avoid the pitfalls of Title II.”