The Writers Guild of America East says the FCC should prohibit paid priority and that presuming it to be commercially unreasonable, as FCC Chairman Tom Wheeler has said would be his presumption if the results were disadvantaging competitors, is not enough.
WGAE also says the FCC should broaden network neutrality to prohibit paid priority deals for edge provider access to distribution networks, the "paid peering" arrangements that the Comcast/Netflix deals has put a spotlight on.
"The willingness of Netflix to pay Comcast/NBCU and Verizon huge fees to ensure swift and smooth streaming is economically rational for all the entities (and therefore commercially reasonable)," said WGAE in explaining how a commercially reasonable standard might not protect consumers. "Netflix’s product is made substantially more attractive to customers as a result, and Comcast/NBCU and Verizon gain enhanced revenues. Unfortunately, this also means that customers face upward price pressure, and content creators and distributors who do not pay for this prioritization have a substantially more difficult time attracting viewers."
That input came in comments on the FCC's proposed new network neutrality rules, which would allow paid priority only if it were commercially reasonable, with the FCC determining that on a case-by-case basis.
Wheeler has said that paid peering is a separate issue from paid priority in the last mile — paying for a fast lane directly to consumers — but that he is concerned about peering as well.
"A presumption that paid prioritization would be commercially unreasonable might seem appropriate," WGAE told the commission. "However, favoring some content and disfavoring the rest might be eminently reasonable to the parties with pockets deep enough to afford to do so. Therefore, a better approach would be a flat ban on pay-for-priority service..."
WGAE also threw in shots at the proposed Comcast/Time Warner Cable and ATT&T/DirecTV mergers, saying that it would be tough to analyze commercially reasonable in a market "controlled by a monopoly or duopoly."
"The consolidation of major digital media entities, combined with the archaically-narrow scope of the Order, could mean the brave new world of digital communications will wind up looking very much like the current television and film industry," WGAE said, "in which a small number of powerful entities limit competition and thwart openness."
The guild has long argued that the Internet provides a new venue for voices drowned out in a mega-merged industry, a venue threatened by mergers in the broadband space.