TechFreedom-Led Group Asks To Intervene in Net Neutrality Challenge

“The Order’s categorical ban on ‘paid prioritization’ is particularly harmful to TechFreedom and other users of VoIP services and similar technologies,” said the motion filed Monday. Technological fixes address latency, jitter and packet loss that otherwise affect IP-based communications, the motion said. “Several technological measures address all three problems by effectively ‘prioritizing’ packets for services that require priority to function (thus effectively giving the Internet, a ‘packet-switched’ network, some of the advantages of ‘circuit-switched’ networks like traditional telephony).” Net neutrality rules ban such prioritization, said the order's opponents. “Without the ability to pay for such prioritization, these services will be undersupplied by the market; broadband providers will under-invest in that capability.”

CARI.net, which provides customers cloud services and operates managed data centers, would face a particular set of harms from the ban on paid prioritization, the motion said. The ban “bars the company from offering its Data Center customers the ability to purchase certain levels of treatment or a certain quality of treatment, or to send their traffic over specific networks,” the proposed intervenors told the court. CARI.net also stands to gain financially from negotiating improved connections with ISPs and selling this service to its customers, the motion said. It said the ban on paid prioritization “eliminates CARI.net’s ability to enter into strategic partnerships with venture capitalists and broadband providers.”

The individual intervenors named are VoIP pioneers harmed by the ban on paid prioritization and the reclassification of broadband under Title II of the Communications Act, the motion said. “The Order’s reinterpretation of Title II, and specifically its equation of IP addresses with telephone numbers, effectively reverses long-standing FCC policy against regulating VoIP services under Title II. This creates immediate, significant regulatory uncertainty that reduces the ability of the individual intervenors and their companies to raise investment funds, and chills innovations that could benefit consumers.”

“The FCC’s blanket ban on paid prioritization will harm us and all other users of cloud-based services, such as Skype, Google Docs, and UStream,” said TechFreedom President Berin Szoka in a Tuesday news release. “Paid prioritization could mitigate latency, jitter and other user experience problems associated especially with VoIP and video live-streaming."

“Not sure why these guys are so late to the party,” said Public Knowledge Senior Vice President Harold Feld. “I assume that when they saw the huge pushback on the stay, the carriers decided they needed more allies.”

Free Press Policy Director Matt Wood also dismissed the arguments. “It’s easy to claim that VoIP services need prioritization, and harder to show that they do,” Wood said. “Lots and lots of over-the-top voice providers today seem to do just fine without it, and the mentality behind prioritization really only makes sense if bandwidth is scarce.” The “supposed” supporters of Internet freedom “are clamoring for the right to prioritize their own content and degrade other people’s, while even the broadband providers themselves claim they have no desire to sell prioritization and say they’re fine with the bright-line ban,” Wood said. “Looks like someone doesn’t have their story straight.”

Richard Bennett, network engineer and visiting fellow at the American Enterprise Institute, said the issues raised by the net neutrality opponents are real. “Net neutrality is an attempt to prevent carriers from doing harm to innovators by banning the sale of a large class of network management practices,” Bennett said. “Unfortunately, most of the banned practices are beneficial and only a few are genuinely abusive. So it’s an attempt to ‘baby proof’ the Internet’s electrical sockets that places enormous obstacles in the way of applications that need consistent low latency, like telepresence and telerobotics.”

Intervenors are focused on the “Achilles' heel” of the order, the “draconian” ban on paid prioritization, said Progressive Policy Institute Senior Fellow Hal Singer. FCC Chairman Tom Wheeler “testified to Congress in the spring of 2014 that the FCC could not ban paid priority even under Title II,” Singer said. “He was right then for legal reasons. And from an economic perspective, the notion of banning contracts that improve the welfare of the contracting parties without harming a third party is highly inefficient.”

Full Service Network, Sage Telecommunications, Telescape Communications and TruConnect Mobile also filed a motion to intervene in the industry challenge. Full Service Network also challenged the net neutrality order, but on the ground that the FCC didn’t go far enough. The company asked the court to “’mandate the FCC apply statutory provisions’ to broadband Internet access service providers that the agency decided not to apply and ‘vacate the FCC’s forbearance decisions,’ which limited to some extent the FCC’s application of Title II’s common carrier regime to broadband Internet access service,” the pleading said.