Academics Seek FTC Input to Avoid Paid Prioritization Ban

Say it Should Warn FCC Against Per Se Prohibition

Some academics opposed to Title II reclassification and a ban on paid prioritization, including Christopher Yoo of the University of Pennsylvania and Hal Singer from Georgetown, have asked the Federal Trade Commission to warn the FCC off of going in that direction.

In a letter to the agency, they argue that the FCC's and White House's apparent goal of prohibiting paid prioritization would amount to a per se ban on those agreements by " truncating the factual analysis needed to condemn such agreements" or setting an unrebuttable presumption against them.

They say that neither the record nor "basic economics" supports that approach, and that the FTC should warn the FCC on the potential impact.

The academics argue that paid prioritization is potentially pro consumer. By contrast, the President has come out against paid prioritization, and FCC Chairman Tom Wheeler has suggested he is on the same page, at least when it comes to anticompetitive paid prioritization.

They say the FTC should warn the FCC not to take an approach that harms consumer welfare, as they suggest a de facto ban on paid prioritization would do.

They reference a 2006 staff report on broadband competition policy and network neutrality released under Republican FTC Chair Deborah Platt Majoras that advised "proceeding with caution before enacting broad, ex ante restrictions in an unsettled, dynamic environment."

"As the net neutrality debate has shifted dramatically since 2007," the academics says, "the FTC should further caution the FCC against applying per se rules."

The letter was signed by 32 professors, fellows, lecturers and others.