ISPs Claim That If The FCC Reclassifies The Internet As A Utility, “Paid Prioritization” Wouldn’t Be Banned

In a letter signed by a swath of broadband CEOs, the ISP industry pushed back against the idea of reclassifying Internet service into a Title II utility, under which it could be more heavily regulated.

Private companies pushing back against increased potential regulation is no surprise, but some of the claims that the CEOs made are worth examining. Later this week the FCC will vote on a proposed set of open Internet rules. Among the “notice of proposed rule-making,” provided that it can pass, will be a question regarding whether the FCC should reclassify the Internet as a Title II utility.

The key argument so far among advocates net neutrality opposed to the creation of paid prioritization and its requisite “fast lanes,” is that under Title II classification, such contracts could be stymied. Not so, say the CEOs:

In defending their approach, Title II proponents now argue that reclassification is necessary to prohibit “paid prioritization,” even though Title II does not discourage—let alone outlaw— paid prioritization models.  Dominant carriers operating under Title II have for generations been permitted to offer different pricing and different service quality to customers.  

There are a number of concepts and tactics at play in all of this. There’s traditional net neutrality, non-discrimination of content on ISP networks, peering agreements by which content companies pay ISPs to directly load traffic onto their network, and paid prioritization, a proposal by which companies could pay ISPs for faster delivery of their content.

The last option, with its requisite ‘fast lanes’ is viewed two ways: Those in favor of the plan seem to view the split as between regular, robust Internet delivery, and an even more robust channel for those who can afford it, and want it. Opponents see this as the bifurcation of the Internet into something that is fast and something that is not.

When it comes to setting the rules, the broadband CEOs are not convinced that the FCC could reclassify the Internet under Title II:

Not only is it questionable that the Commission could defensibly reclassify broadband service under Title II, but also such an action would greatly distort the future development of, and investment in, tomorrow’s broadband networks and services. 

This is the promise of a legal fight. FCC Chairman Tom Wheeler has indicated that if the FCC were to choose Title II as its goal, the legal fight would take years, in his estimation. The ISPs are essentially making good on his fear.

Things are coming to a head this week, as Re/Code pointed out earlier today:

FCC officials are expected to vote on the proposal Thursday, after which the draft would be made public so people can finally see details of what Wheeler is proposing.

All told, the battle lines are arrayed for the coming scrap: Internet companies and activists against ISPs and lobbyists. Let’s see who comes out on top.