House Communications to Revisit Paid Prioritization, One of Net Neutrality Debate's Top 'Sticking Points'

Paid prioritization is the aspect of net neutrality policymaking that has “the highest level of disagreement on what the right policy is,” House Commerce Committee Chairman Greg Walden, R-Ore., told us. “I think we've come to an agreement on banning blocking, throttling and the other anticompetitive practices, but when it comes to paid prioritization it gets a little stickier.” Many GOP lawmakers are aiming “to preserve some form of” paid prioritization, while “some want to ban it altogether,” he said. “We understand there are perils that go with” prioritization, “but there are reasons for using this practice, in telemedicine, for example. Do you want your remote surgeon to have a breakdown in communication because people are watching cat videos on YouTube?”

“We need to hear from the innovators” of technologies like artificial intelligence and autonomous vehicles “about how prioritization affects them, how they utilize it” before lawmakers decide on a legislative consensus, said House Communications Chairman Marsha Blackburn. R-Tenn. Her Open Internet Preservation Act (HR-4682) doesn't address paid prioritization (see 1712190062 and 1712200057), specifically because the bill language filed in December was meant to “deal with areas where there is agreement,” like blocking and throttling. “I hope this hearing is a good educational experience for the whole committee” and “builds a broader understanding” of the landscape, Blackburn told us.

Paid prioritization is definitely “one of the sticking points” in the net neutrality debate and “one of the elements many of us feel have to be in any kind of vehicle that would put some finality to this as opposed to ping-ponging it between FCC majorities,” said House Communications ranking member Mike Doyle, D-Pa. “The idea that we're going to pay for two classes of internet is a real problem for us.” Doyle cited Facebook as an example of a company that might not have been able to grow “under a scenario where [CEO] Mark Zuckerberg had to pay to get his idea out there.” Democrats are continuing to push a Congressional Review Act resolution of disapproval aimed at repealing the FCC's rescission order (see 1802270040), though “we obviously don't have the numbers” in the House to reach the necessary 218-vote majority to pass it in that chamber, Doyle said. “But the Senate is nearly there” since 50 senators have declared their support for the measure. Doyle, who's sponsoring the CRA resolution in the House, announced Monday the measure has 160 co-sponsors.

Information Technology and Innovation Foundation Director-Telecom Policy Doug Brake and Public Knowledge Senior Policy Counsel Phillip Berenbroick said they believe the hearing is unlikely to lead to any real movement in the short term toward a net neutrality consensus given the parties' entrenched positions on the issue. The “winds have shifted” for Hill Republicans against a paid prioritization ban compared with where the leadership stood in 2015, while Democrats still uniformly support it, Berenbroick said. It's still “important to get the issue out there and hear the merits on both sides,” Brake said. ITIF believes a compromise on paid prioritization is possible in a way that “can be tailored to allow for important new uses” while also instituting oversight by an “expert agency.”

House Commerce Republican and Democratic memos highlight the divide between their approaches to prioritization. A total ban on prioritization “would not permit … intelligent dropping” of packets, in which certain types of data would be prioritized over others, “and therefore, not allow some services, applications, and devices to function properly,” the GOP memo said. Prioritization exists at all levels from the network core to edge providers, including search engines that “optimize result pages to put some websites higher on the list than others” and social media platforms that “also engage in prioritization of advertisements, elevating the profile of some ads over others.”

The Democrats focused on how the FCC's 2015 rules handled a ban on paid prioritization, noting the FCC allowed ISPs to “engage in 'reasonable network management' for activity that was 'primarily technical network management justification.'” The rules didn't ban some specialized services, including “heart monitors, energy consumption sensors, automobile telematics, e-reader connectivity, facilities-based [VoIP] and [IP]-video offerings,” the Democrats' memo said. The rules also allowed ISPs to “obtain permission” to engage in prioritization practices if they would provide some public interest benefit, for instance suggesting “that in addition to being structured as a specialized service,” telemedicine could “meet this waiver standard.”

Witnesses' written testimony also illustrates the divide on prioritization. Although a ban on internet “optimization” has “been held out to policy makers as a silver bullet that solves the problem of keeping the Internet on track, it is a false hope,” High Tech Forum founder Richard Bennett said. “In reality, nearly all forms of network optimization are good in some contexts and bad in others. Our regulators need to develop the wisdom to tell the difference.” Ending the paid prioritization ban “would upset” the existing balance in the internet ecosystem “and radically change the internet in the bargain,” Free Press Policy Director Matt Wood said. “The ban only prevented” ISPs “from favoring traffic in exchange for payment from third parties, or to benefit an ISP's affiliated video or voice offers.”

Rysavy Research President Peter Rysavy tied the prioritization debate into maintaining U.S. leadership in the move toward 5G. The U.S. “has assumed global leadership in 4G” but globally countries are now focusing on 5G. "Constraining 5G with rules that restrict traffic management necessary for the traffic flows anticipated with 5G applications could threaten U.S. leadership in mobile technology and deployment,” Rysavy said. Lawmakers should “support policies and programs which promote and expand reliable access to visual information as a right for individuals who are blind or visually impaired,” said Aira Tech Director-Public Policy and Strategic Alliance Paul Schroeder.