Subjecting the broadband industry to a Draconian regulatory regime would authorize one of the very practices Net neutrality advocates have long feared: agreements in which so-called edge providers like Google and Netflix could pay for faster access to consumers’ broadband service, relegating other content to slower lanes.
That’s AT&T’s position anyways. According to the company, Title II of the Communications Act does not provide authority for the Federal Communications Commission to ban paid prioritization.
“By its terms, Section 202(a) of the Communications Act prohibits ‘unjust or unreasonable discrimination’, not ‘all’ discrimination,” wrote Jim Cicconi, AT&T Senior Executive Vice President-External and Legislative Affairs, in a blog last week. “Eighty years of FCC precedent and case law make clear that so long as a common carrier offers a service to similarly situated buyers on similar rates, terms and conditions, those practices, including a hypothetical ‘paid prioritization’ service, would satisfy Section 202 (a).”
For instance, Cicconi said Title II authorizes common carriers like AT&T to offer “prioritized installation and repair, different quality of service levels, and term and volume discounts.” In a filing last month with the FCC, Verizon Communications noted only “unjust or unreasonable discrimination” is prohibited under the law.
“Indeed, the history of common carriage is replete with examples of differentiated services and pricing,” Michael Glover, Verizon Senior Vice President and Deputy General Counsel wrote, seeking to rebut the argument by Title II advocates that such regulation would forbid disparate treatment of Internet traffic.
The nonprofit Free Press, whose mission is to promote open Internet access, characterized Cicconi’s blog as “more weasel words from AT&T.”
“Title II alone, by simple operation of the statute, wouldn’t ban paid prioritization online. But the law gives the FCC the power to make the call and to ban discrimination upon a finding that it’s unreasonable,” Free Press wrote. “And that’s why ISPs don’t like Title II.”
AT&T and Verizon want the FCC to forbear from regulating Internet services under a utilities regime they declare hardly resembles the world today.
In its recent notice of proposed rulemaking on Net neutrality, the commission has asked for comments on whether it should regulate broadband services under Title II of the Communications Act of 1934. The FCC also is considering invoking its authority under the Telecommunications Act of 1996.
The same notice asks whether the commission should ban paid prioritization agreements.
In a series of decisions dating back 12 years, the FCC has classified broadband Internet service as an “information service” that cannot be regulated as a common carrier service and is not subject to Title II.
Invoking Title II, AT&T and Verizon argue, would throw a monstrous monkey wrench into an Internet economy famous for innovation, potentially subjecting companies such as Netflix, Google and YouTube to primordial regulations.
“Title II’s mother-may-I requirements to introduce new services and features or to withdraw experimental additional offerings are anathema to innovation and investment,” Glover declared. “Similarly, price regulation, generally through approval of tariffs, has been a central pillar of Title II regulation. But, as the Department of Justice previously told the Commission, such regulation would directly threaten the national goals aimed at encouraging investment in broadband facilities.”
Free Press brushed aside those arguments. “The biggest telephone companies invested more under Title II—and less after their broadband services were removed from its jurisdiction in 2005,” the organization said.
Finally, even if the FCC subjected broadband Internet service to Title II regulation, it asked whether it should essentially excuse companies from compliance with all the common carrier provisions “in order to strike the right balance between minimizing the regulatory burdens on providers and ensuring that the public interest is served.”