Paid Prioritization To Have Tougher Waiver Standard

Waivers can be sought for all commission rules, the official said. “Given the intense focus in the record on paid prioritization, [waivers] would be considered under a more specific standard” than the “good cause shown” standard for other rules, the official said. The “standard for overcoming the bright-line rule would be extremely high,” and waivers would be granted “rarely, if at all,” the official said. Waivers could be granted only “after a very public process,” said the official.

Mozilla Senior Policy Engineer Chris Riley applauded the tougher standard. “I love that that’s the direction they’re headed in,” he told us. A key for Communications Act Title II proponents in examining the draft is making sure the rules can withstand “what future commissions will do. An overly broad waiver means the rules can be watered down over time or ignored,” he said. More substantive standards will help public interest groups challenge any waivers, said Riley, who backs the draft’s Title II approach. The organization launched an email campaign to push the commission to adopt the proposed reclassification. Broadband providers didn't comment. The draft will also create a process in which parties can seek Enforcement Bureau advisory opinions about their own conduct, but not that of others, before embarking on a new practice.

The draft order, like the 2010 open Internet order, will exclude so-called specialized services like VoIP from Title II reclassification, said the official. It makes it clearer than in the previous order that specialized services involve those that can't be used to access the open Internet, said the official. The draft “goes on to make clear that the Commission will not allow these services to be offered in a way that evades or undermines the purpose of the Open Internet rules,” the official emailed. The services will be referred to as “non-Internet data services,” the official said. Public Knowledge had argued that the services shouldn't be excluded from Title II. If they were, providers should have to demonstrate the services can't be used on the open Internet to be excluded from net neutrality rules, the December comments said.

Public Knowledge Senior Staff Attorney John Bergmayer withheld judgment Wednesday. Specialized services, which include services like AT&T’s U-Verse, “are not marketed as Internet access and no one buys them for that, even though they use some of the same technology,” he said. But the group has been concerned they pose potential for abuse. “What if an ISP doesn't have the incentive to make its broadband suitable for high-quality video because it also just so happens to sell an IP video product?” Bergmayer said. The group has argued that if the agency exempts services that do not run over the open Internet, “there needs to be a demonstration that the service in question could not work over the Internet,” he said.

Verizon officials in a meeting with Wireline and Wireless bureaus and General Counsel’s office officials and Chief Technology Officer Scott Jordan Jan. 15 urged the commission not to include specialized services in the order, an ex parte filing said. The concerns raised have been over “hypothetical concerns," and proposed restrictions “would discourage the offering of innovative new services and take away choices for consumers,” Verizon officials said. “Rather than preempting innovation in this still-emerging area, the Commission should encourage it.”

Allowing the agency to determine whether specialized services are being used to circumvent net neutrality rules “is incredibly dangerous because specialized services like VoIP and cable very clearly benefit consumers," TechFreedom President Berin Szoka said. A better solution would be to require the FCC to justify regulating specialized services, or require other federal agency involvement in such decisions, he said. For example, the commission could be required to base decisions on GAO data, he said. Better still would be standards that err on the side of experimentation, he said.

Waivers should be judged “against the most exacting of standards,” Public Knowledge President Gene Kimmelman told General Counsel Jonathan Sallet Nov. 5, recounted an ex parte filing. By that he meant, Kimmelman said, that exceptions should be granted only if there’s “clear and convincing evidence that any paid arrangement is the only means to achieve a legitimate public interest goal, would not otherwise tilt the level playing field … in favor of one particular form of expression, type of service, or point of view, does not have an adverse impact on competition, and is not harmful to the virtuous circle.”