Amazon to Senate: Net-Neutrality Draft Needs Work

Company Has Issues With Specialized Services, Title II, More

Amazon has a lot of issues with the Republican proposal for new network-neutrality rules, but it is O.K. with charging a 24/7 gamer more for access than an infrequent e-mail user, and with defining the limits of the FCC's authority over the 'Net.

In prepared testimony for the Jan. 21 hearing in the Senate Commerce Committee, Paul Misener, Amazon vice president for global public policy, said that depending on how it was interpreted, the company also supports the bill's capping of the FCC's authority, but only if the bill does not also rescind its Title II authority.

"Subsection (b) says that the FCC 'may not expand … Internet openness obligations … beyond the obligations established' in the bill 'whether by rulemaking or otherwise,'” Misener said. “The word ‘expand’ is vague, but if the intention here is to establish a ceiling for these obligations, i.e., a cap on the FCC’s authority respecting the substantive provisions of the bill, this is Congress’s prerogative and reasonable expectation; we certainly don’t support allowing an agency to act beyond its statutory authority, and would support a provision like this, if the bill went only so far."

“Only so far” means, in part, not then rescinding the FCC's authority to regulate broadband under Title II, as the bill would do.

"Summarily blocking the FCC’s use of existing statutory enforcement authority could leave the agency helpless to address improper behaviors well within its authority..." Misener said. "We believe that the FCC’s Title II authority should be maintained to ensure the effectiveness of Internet openness, subject to any reasonable substantive ceiling on Internet openness obligations."

Some edge providers are concerned about approaches to new open-Internet rules that would sweep them into the ‘Net regulations.

Misener also pointed out that Amazon sees a Title II reclassification approach with sufficient forbearance—only applying sections 201, 202 and 208, or parts of them, is within the FCC's power and would protect Internet Openness without creating unintended consequences. But, the hearing was on legislation, and so he addressed that approach.

Misener told the Senators that the principles in the draft are "excellent," specifically that "throttling and paid prioritization must be banned; that net-neutrality protections must apply to wireless, as well as wireline; and that providers must disclose their practices."

But Amazon respectfully suggested that, in numerous ways, the draft could undermine those principles and would need to be modified. Among the modifications, the company said, would be not to exempt specialized services from the rules: "This could create a huge loophole if, for example, specialized services involved the prioritization of some content and services, just like proscribed ‘paid prioritization,’ the only difference being that the content or service prioritized came from the broadband Internet access service provider itself, instead of a third party."

Specialized services are ones that aren't carried over the public Internet. Amazon also has trouble with the phrase that says nothing in the language "shall be construed to limit consumer choice of service plans or consumers' control over their chosen broadband Internet access service...."

Misener said the language is unnecessary, and at the least should be clarified along the lines of, “Nothing in this section should be construed to limit the ability of consumers to choose to pay for higher or lower data rates or volumes of broadband Internet access service based on their individual needs.” He said Amazon agrees that it makes "no sense to require an infrequent email user to pay the same for Internet access as a 24/7 gamer and, if such a clarification is needed, we would support it."

The bill allows for "reasonable network management," which Misener concedes is a boilerplate caveat for net-neutrality rules. But he pointed out that with the addition of wireless broadband under the rules, "any claim of reasonable network management should be viewed very suspiciously if, in practice, it undermines prohibitions of blocking, throttling, paid prioritization, etc., or if it tends to favor content or services offered by the broadband provider itself."

The FCC did not apply the Open Internet no-blocking or anti-discrimination rules to wireless in its 2010 Open Internet order, but is rethinking that this time around given the explosive growth of mobile since then. The draft has a reasonable network management caveat about "taking into account the particular network architecture and any technology and operational limitations of the broadband Internet access service provider." Wireless's unique architecture issues — overloaded cell sites for one — were what convinced the FCC not to apply all the rules back in 2010.

Amazon also wants the FCC to apply net-neutrality rules to the middle mile. "[A] consumer will not care where in her service provider’s network any interference with net neutrality occurs, only whether it occurs," he said. "Providers should not be allowed to accomplish blocking, throttling, paid prioritization, etc., further upstream in the network, just because the bill could be construed to address only the network facilities closer to consumers, such as the ‘last mile.’”