AT&T, Verizon Stress Need to Define ‘Harmful’ Prioritization in Net Neutrality Rules
Verizon threw a new concept into the net neutrality debate, “harmful paid prioritization,” arguing that legal challenges to net neutrality rules are unlikely, as long as they address the to-be-defined “harmful” prioritization and as long as the FCC doesn't reclassify broadband as a Title II common carrier service (see 1411040054). Industry and FCC officials said Verizon’s statement Tuesday, in a blog post by General Counsel Randal Milch, seems potentially significant as a compromise proposal from a dominant ISP, coming from high within the company.
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AT&T appears to be on a similar page. The carrier said in comments filed at the FCC Wednesday that CEO Randall Stephenson spoke to FCC Chairman Tom Wheeler Monday about net neutrality. “Mr. Stephenson reiterated AT&T’s position that the Commission has the authority to protect and promote the open Internet under section 706 of the Communications Act by prohibiting paid prioritization which harms consumers or competition,” AT&T said in a filing in docket 14-28.
“All of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC’s authority to do so and taking them out of the litigation path,” Milch wrote.
Gus Hurwitz, professor at the Nebraska College of Law, thinks it is high time the concept of harmful paid prioritization gets more attention. “We know pretty clearly there are many ways in which prioritization can be beneficial to consumers,” Hurwitz told us. The blog was “Verizon cutting to the quick and saying, ‘tell us what’s problematic here. We don’t really have interest in doing things that are problematic. Define what you’re concerned about and we can probably live with that.’” Hurwitz has been a skeptic of net neutrality rules.
The FCC should frame any new net neutrality regulation “in terms of preventing only 'harmful' practices as opposed to establishing ‘per se’ bans,” said Free State Foundation President Randolph May. Absent conditioning a rule to require a showing of consumer harm, “the regulation will not survive judicial scrutiny if it is challenged,” May predicted. “Given today's marketplace, the commission should turn around the proposed presumption in its NPRM regarding paid prioritization so that a practice is presumed lawful absent convincing evidence that it causes consumer harm."
But Public Knowledge Senior Vice President Harold Feld said the rules suggested by Verizon would, in effect, mean no net neutrality complaint could ever succeed. “Even Comcast blocking BitTorrent could claim that their decision was ‘positive’ rather than ‘harmful,’” Feld said. He questioned the viability of developing a workable definition of harmful prioritization. “If the FCC actually applies the standard consistently, the rule becomes subject to reversal because the FCC is being too consistent and therefore not leaving the carrier sufficient discretion,” he said. “I could win five meritorious complaints, then have a carrier appeal on the grounds that the FCC never lets them win any and is therefore applying the rule as a rule of common carriage. That's nuts.”
“I don’t think Verizon wants to sue again and they’re trying to give the commission a path to come close to banning paid prioritization without any use of Title II,” said Paul Gallant, analyst at Guggenheim Partners. “I think it has some appeal to the agency, but they’re walking a legal and political tightrope, so hard to say yet if it’s a game-changer.”
In an interview on C-SPAN’s The Communicators, scheduled to be televised this weekend, University of Pennsylvania law professor Christopher Yoo said that, with or without paid prioritization, someone has to pay for increasing network capacity. In a world where Netflix pays nothing to Comcast, and Netflix streaming is one-third of the Internet, “Comcast is going to have expand its capacity,” he said. Without paid prioritization, Comcast is “going to have charge every one of their users for that higher capacity.”
Yoo also said wireless really is different. Unless someone has an LTE phone, “it’s not, actually, an Internet-enabled device,” he said. “It uses an old legacy telephone connection to get back to the cell tower.” That “is a technical fact that is lost on a lot of policymakers and is uncontroversial from an engineering standpoint,” he said.
Meanwhile, Sarah Morris, senior policy counsel for New America’s Open Technology Institute, met with FCC General Counsel Jonathan Sallet to urge careful review of a recent report by the Measurement Lab (M-Lab), a consortium of researchers “on the effects of sustained and significant degradation of throughput to subscribers of major U.S. Internet.” Any effective net neutrality solution must offer both “strong rules and sure legal footing,” Morris said in a filing in the docket.