As the Federal Communications Commission wraps up its open comment period for its proceedings on "net neutrality," AT&T has released its 99-page contribution. And one section in particular has caught the attention and drawn the ire of some fans of neutrality regulations.
It has to do with the idea that in some cases, some of its customers might choose to dedicate to certain applications more of the bandwidth that they pay for, effectively degrading others. For instance, you, an AT&T broadband customer, might choose to curate your broadband connection so that your Vonage calls generally connect quickly but are delayed a bit when you're engaged in a heavy World of Warcraft session.
That can sound a lot like the "paid prioritization" that is at the heart of today's net-neutrality debate, and the tech website Ars Technica has branded what AT&T has in mind a "giant loophole" in a " 'fast lane' ban."
But AT&T cites support for such "user-directed prioritization" on the part of high-profile net-neutrality advocacy groups such as the Washington-based Center for Democracy & Technology and Massachusetts-based Free Press. And there's good reason for that: Those groups are perfectly fine with the idea.
"The issue comes down to who's deciding what gets priority," says Andrew McDiarmid, a senior policy analyst at CDT. "It's much less of an issue if a user makes the technical decision about what gets priority, and it's not the same thing as a ISP being in the position of deciding winners and losers."
Matt Wood is the policy director at Free Press, and perhaps no group has been as energetically and vocally in favor of the FCC adopting aggressive net-neutrality regulations. Even he says that "people should be free to use their connection any way they want. That's the point of all this."
That AT&T is making CDT and Free Press's thinking the centerpiece of its arguments is a sure sign that we have reached the jujitsu phase of the net-neutrality debate, where the best move you can make is one that uses your opponent's assets against it.
If it is a clever move by AT&T, it is not to say that the advocacy groups are loving the focus on user-directed prioritization. Some worry that it is using a rare point of consensus to back the FCC into sticking with the authority it has under Section 706 of the Telecommunications Act, which has to do with encouraging the adoption of broadband rather than making the leap now being advocated for by dozens of tech companies treating broadband as a Title II service, which applies to essential "common carrier" services such as U.S. telephone lines.
A bit of history: Back during the George W. Bush administration, the FCC opted out of treating broadband as a Title II service. In January's landmark Verizon v. FCC decision, the U.S. Court of Appeals for the District of Columbia Circuit said that if the FCC is not going to formally treat broadband as a common-carrier service, it cannot fudge and regulate it as such without admitting that is what it is doing.
That is what the agency was up to, said the court, "in requiring broadband providers to serve all edge providers without 'unreasonable discrimination.' " The flip side of such a rule is that it requires providers "serve the public indiscriminately." So in order to have authority under Section 706, the court says, the FCC has to allow Internet service providers to discriminate somewhat. Otherwise, that is Title II by any other name, and thus unacceptable.
Hence, by embracing "user-driven prioritization," the FCC would be lodging ISPs more firmly under the more lightly regulated Section 706, which is where AT&T and other broadband providers badly want to stay.
Matt Wood of Free Press dismisses AT&T's argument as a "legal sleight of hand," and in the end, the FCC may, too. But the more the big ISPs can find points of consensus with its opponents that actually serve to bolster their own arguments, the better.
If the FCC decides that it does not want to overhaul how it deals with broadband, it can point to nuances like "user-directed prioritization" to argue that it is doing all that advocates want, even if it is not doing it exactly the way that advocates want them to do it. The debate over net neutrality "began in earnest over a decade ago," AT&T Senior Vice President Bob Quinn wrote in a blog post introducing the company's FCC comments. And the company has learned a thing or two about how to get what it wants.
