ITIF to FCC: Internet Discrimination Can Be Good

Says FCC should lift absolute ban on paid prioritization

Banning all paid prioritization will not result in an internet that drives innovation and consumer welfare, an internet that has never treated content neutrally anyway.

That was one of the main points from the Information Technology and Innovation Foundation, which filed comments Monday, the deadline for initial comments in the FCC's proposal to rethink its broadband regs, including the current prohibition on paid prioritization.

ITIF said that it agreed that the FCC needed to be a cop on the paid prioritization beat but on a case-by-case basis.

"[T]he Internet has never been 'neutral,'” ITIF told the FCC. "[D]iscrimination can be pro-innovation and pro-consumer or anti-innovation and anti-consumer."

ISPs have similarly signaled that while they pledge not to block or throttle traffic, paid prioritization can be a service differentiator and a pro-consumer business model.

ITIF agrees. "Broad dictates like 'all prioritization should be banned' or 'all prioritization should be allowed' are not helpful to achieving the kind of Internet that will be central to driving innovation and consumer welfare in the decades ahead." 

ITIF backs FCC chairman Ajit Pai's proposal to roll back Title II and review the current Open Internet order rules. It says ideally Congress should weigh in to clarify that internet access is a Title I information service, but that the FCC also needs to come up with "balanced, lasting regulations" using an antitrust model of enforcing a commercial reasonableness standard on a case-by-case basis rather than rigid "ex ante" (before the fact) rules, like the current no blocking, throttling or paid prioritization.

ITIF argues that with the growth of CDNs, content delivery networks that don't ride over the public internet, while the possibility remains of prioritizing over the last-mile connections of ISPs, "it is unlikely broadband providers have a compelling business case for prioritizing buffered video, especially when CDNs are so prevalent." 

ITIF supports retaining the FCC's rules on transparency about how an ISP is operating its network, which it says is a way to do most of the regulatory heavy lifting.

As to the focus on preserving a neutral network, ITIF says that horse has already left the barn, or more to the point, was never in the barn to begin with. Simply put, they say, the internet has always favored some content over others.

"A fundamental question rarely addressed by those advocating for a 'neutral' net is 'neutral with respect to what?'” it told the FCC. "The architecture of the Internet favors delivery of static content (e.g., web pages, email, etc.) over dynamic, real-time communications (e.g., VoIP or telepresence). Overly strong net neutrality regulations risk limiting the growth of real-time applications in order to lock-in an architecture that favors plain-text web pages. As Tim Wu, who coined the term 'net neutrality,' has put it. '[T]o the extent an open access rule inhibits vertical relationships, it can help maintain the Internet’s greatest deviation from network neutrality—favoritism of data applications, as a class, over latency-sensitive applications involving voice or video.'"

(Photo via Rock1997Image taken on Jan. 18, 2017 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)