Wheeler, Obama May Differ Over Banning Paid Prioritization
The news coverage and barrage of reactions to President Barack Obama's net neutrality statement Monday has focused on the divide between him and FCC Chairman Tom Wheeler over to what extent to base rules on Communications Act Title II. But public interest advocates said the statement also highlighted another potential division between the White House and the agency over an issue Columbia University law professor Timothy Wu believes is more important than reclassification: whether the commission will bar paid prioritization or create a rebuttable presumption against it.
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Obama's statement said he wanted “an explicit ban on paid prioritization and any other restriction that has a similar effect.” An FCC official told us Wednesday that no prohibition under the Communications Act is absolute, because parties can seek waivers or forbearance. "The Chairman has repeatedly said he is against fast lanes or paid prioritization," emailed the official. "The team is looking for the best legal approach to achieve that goal under existing statute, which always permits companies to ask for waivers."
Wheeler was “skeptical” of a flat paid prioritization ban, The Wall Street Journal reported last week. By applying Title II only on the relationship between ISPs and customers, but not between edge providers and ISPs, a hybrid proposal Wheeler was considering would not have explicitly barred deals between companies, the newspaper reported.
The issue was mentioned by both sides of the net neutrality debate, with Public Knowledge and top Comcast officials focusing on it in meetings with senior FCC officials in the days leading up to Obama’s statement, ex parte filings show. Public Knowledge pushed for a clear prohibition, while Comcast said a presumption would be safer legally.
Wheeler hasn’t fully embraced Obama’s wishes, saying in meetings with industry, public interest representatives, and on Wednesday with former FCC Commissioner Michael Copps (see 1411120041">1411120041), that he’s working through a number of concerns he has with a strict Title II approach. But Obama’s statement “helps push an outright ban,” Public Knowledge Senior Vice President Harold Feld told us.
“The most important issue right now is not the jurisdictional form of Title II used, but the strength of the underlying Net Neutrality rule,” emailed Wu, who's credited with coining the term net neutrality. “Title II can be used to support both strong rules or weak rules, and I am concerned it will be used for weak rules,” Wu said, referring to the possibility of a presumption.
Wheeler "is unconvinced that he can ban harmful prioritization,” Free Press Policy Director Matt Wood said. While saying the issue is important, he disagreed that it’s more important than reclassification. “No rule -- good, bad or indifferent -- can stand up in court if it's based on bad authority. So more important or less important is not really the right frame. The authority must come first, then we need good rules on top of it,” he said.
Public Knowledge's Gene Kimmelman focused on the need for an outright ban during a meeting last week with FCC General Counsel Jonathan Sallet, according to an ex parte filing. Saying paid prioritization “is harmful to free expression online, innovation, and economic growth,” Kimmelman said any net neutrality order “should affirm this finding and conclude that paid prioritization is unlawful.” Feld and Public Knowledge Vice President Michael Weinberg also stressed an outright ban during a Nov. 3 meeting with Associate General Counsel Stephanie Weiner, according to an ex parte filing, saying, “Regardless of which Title II theory the Commission employs, PK urges that the Commission adopt a ban on paid prioritization rather than a presumption.”
Comcast argued that presumption faced less legal risk for the agency. Senior Vice President-Legal Regulatory Affairs Lynn Charytan, Vice President-Regulatory Policy David Don and Senior Vice President-Regulatory and State Legislative Affairs Kathryn Zachem focused on the issue at an Oct. 31 meeting with Wireline Bureau Chief Julie Veach, Deputy Chief Matthew DelNero and Weiner, said an ex parte filing. Comcast declined to comment Wednesday. The filing said company officials argued that Section 706 “provides ample authority for the Commission to adopt a strong presumption against paid prioritization arrangements.” Comcast cited January's U.S. Court of Appeals for the D.C. Circuit net neutrality decision, which called for leaving room for individualized bargaining. A “strong presumption against all paid prioritization -- in a manner that clearly spells out the public interest showings a broadband provider would need to make in order to overcome the presumption -- would enable the Commission to prevent anticompetitive arrangements while leaving at least some room for beneficial prioritization (and, therefore, comporting with the Verizon decision),” the Comcast officials argued.
The “fact that something is banned,” Feld responded in an email, “helps to emphasize that it is almost always going to be a harmful practice and that it should take a truly extraordinary showing to meet the standard.”