Leahy, Matsui Introduce Bill to Ban Paid Prioritization

Matsui Says Country Can't Afford 'Pay For Play' Schemes

Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.), a member of the House communications Subcommittee, have introduced legislation in both Houses to ban paid priority.

The Online Competition and Consumer Choice Act would "prevent a two-tiered Internet system," said the legislators.

The bill would prevent an ISP from "giving preferential treatment or priority to the traffic of an edge (or content) provider over the traffic of other edge providers for a fee." The bill deals with the last mile, rather than the middle mile paid interconnection (peering) agreements that are being scrutinized by the FCC.

The bill "would require the FCC to adopt regulations that prohibit paid prioritization agreements between an ISP and an edge provider on the last mile Internet connection to the end user."

It also prohibits an ISP from prioritizing or giving preference "to the traffic of content, applications, services, or devices provided or operated by the broadband provider itself, or are otherwise affiliated with the broadband provider." The end users whose traffic can't be prioritized as including residential customers, small businesses, schools, libraries, community colleges, and universities.

“Americans are speaking loud and clear – they want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider,” said Senator Leahy, who also pointed out that he plans to hold a field hearing on network neutrality in Vermont next month.

“Our country cannot afford ‘pay-for-play’ schemes that divide our Internet into tiers based on who has the deepest pockets," said Matsui.

In May, a divided FCC voted on a proposed new approach to FCC Open Internet rules that would allow commercially reasonable discrimination.

Network neutrality fans immediately jumped on that as an opening for paid prioritization that could create a bifurcated fast and slow lane Internet. FCC Chairman Tom wheeler says it is a legally sustainable way to restore the FCC's rule against unreasonable discrimination--by changing the current wording of a ban on unreasonable discrimination--bans are too much like common carrier regs--into an allowance for commercially reasonable discrimination. He has said paid priority that created fast and slow lanes would not be commercially reasonable.

The FCC's May Open Internet order also asks whether paid prioritization should be prohibited outright. That could be tricky given that some prioritization, remote medical monitoring over game playing, is arguably in the public interest.

While both legislators urged passage of the bill, it is unlikely to move given that the Congress is preparing to start focusing on getting itself re-elected and Republicans in control of the House are highly unlikely to agree with the Democratic duo on the need for such a ban.

The Writers Guild of America West is another fan of the bill. "This significant piece of legislation recognizes the Internet must remain free of fast lanes benefitting only large corporations, to the detriment of consumers," said the guild. "Our members, the writers of television, online programming, film, and news, support an open Internet allowing Americans to access legal content on the device of their choosing, whether that be their television, laptop, tablet, or smart phone. Allowing Internet Service Providers to divide the Internet into haves and have nots will stifle innovation and the creation of content."

The guilds have seen the Internet as a new outlet for the creative content they argue is getting harder to place on consolidated traditional media with their own, co-owned content production arms.