AT&T To Leahy: No Paid Prioritization Plans

FCC Can Ban Anti-Competitive Discrimination, Sec. 706, Not Title II
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AT&T says it has no plans to offer third parties paid priority for Internet traffic, though it might be able to offer user-directed priority in the future, much as it does for business customers today.

In any event, it says, the FCC has the authority to ban paid prioritization under Sec. 706 authority, but would not under Title II.

That came in a letter to Senator Patrick Leahy (D-Vt.), chairman of the powerful Senate Judiciary Committee, who wrote AT&T and other ISPS asking for their pledge not to create Internet "fast lanes."

AT&T pointed out that while it does not have plans for paid prioritization, some such prioritization is not "antithetical" to an open Internet, like a user-directed regime that prioritizes telemedicine or alarm monitoring or distance learning. It also points out that it worked on and supported the 2010 rules and has agreed to abide by them even though they were thrown out by a federal court earlier this year.

And while network neutrality fans have argued Title II is needed to prevent those Internet fast lanes Leahy is concerned about, AT&T says the opposite is true. "section 706 gives the Commission ample authority to ban such practices if the Commission continues to classify broadband Internet access as an information service," AT&T told Leahy. "But if, instead, as some net neutrality proponents urge, the Commission reclassifies broadband Internet access service as a telecommunications service, any attempt to ban paid prioritization would run headlong into decades of Title II precedent that make clear that generally available differentiated service options, including paid prioritization, are allowed. Thus the Commission would be unable to prevent any Internet service provider that did decide to offer paid prioritization from doing so."

In its response, Verizon similarly said it has not paid prioritization plans and similarly took aim at Title II.

Leahy's office has declined to publicize the responses until it receives them all.

Leahy also sent letters to Comcast, Time Warner Cable, and Charter, pressing them as well for "concrete commitments" not to enter into paid prioritization agreements. Comcast has already responded, but declined to provide a copy, deferring to Leahy on the timing of its being made public.

FCC Chairman Tom Wheeler has signaled Title II could be used to justify new rules if the FCC concludes that is the most legally sustainable course, but initially proposed using Sec. 706 authority to support an anti-discrimination rule that allows for commercially reasonable discrimination, rather than banning all but unreasonable discrimination, as the first rules had read. The commercially reasonable standard was coopted from a data roaming decision after the court suggested that might be a legally sustainable route to preventing anti-competitive discrimination under Sec. 706, which is the FCC's mandate to extend advanced telecom to all Americans in a reasonable and timely fashion.