Op-eds and Articles

The FCC Chairman Steps Into The Abyss

By / 11.4.2014

Last Friday, Gautham Nagesh reported that the FCC  was inching closer to adopting a proposal put forward by Mozilla as its solution to the net neutrality problem. Under this “hybrid” approach, the FCC would reclassify the portion of a broadband provider’s network that interfaces with edge providers as a Title II service, while regulating the remaining portion that interfaces with end users as an information service.

The key line from Mr. Nagesh’s article reads as follows: “While the FCC still believes there should be room for such [priority] deals, its latest plan would shift the burden to the broadband providers to prove that the arrangements would be beneficial to consumers and equally available to any company that would like to participate.”

This leak portends good and bad news. First the good news: The FCC is coming to recognize that some paid priority deals could be beneficial for all parties, including end users. This recognition puts the lie to the “zero-sum hypothesis” peddled by net neutrality proponents—namely, that any priority arrangement must come at the expense of non-prioritized traffic. Hooey, say the network engineers; paid priority has existed in other portions of the network, and can be readily engineered to keep others whole.

And now the bad news: In a bow to political pressure, the FCC seems intent on establishing a presumption that any priority deal violates its rules unless the broadband provider can prove otherwise. Mr. Nagesh’s phrase “shift the burden” was a misnomer, as the FCC’s 2010 Open Internet order established the same presumption by declaring that any paid priority deals “would raise significant cause for concern” and were “unlikely [to] satisfy the no-reasonable-discrimination standard.”

Moreover, the D.C. Circuit ruled that such a presumption effectively barred such deals and was tantamount to common carriage: “If the Commission will likely bar broadband providers from charging edge providers for using their service, thus forcing them to sell this service to all who ask at a price of $0, we see no room at all for ‘individualized bargaining.’” We’ve tried this presumption before and it failed.

Critically, the D.C. Circuit laid out a legal path for the FCC to regulate pay-for-priority deals without resort to common carriage. So long as broadband providers were free to bargain individually with edge providers, the court explained, these arrangements could be regulated under the FCC’s 706 authority.

And how to establish such freedom? By flipping the presumption around, so that priority deals are reasonable until a complaining edge provider can prove otherwise. One can envision two types of complaints arising under this case-by-case framework: (1) an edge provider was denied a priority offering that was extended to its rival, or (2) an edge provider who declined priority from a broadband provider suffered a degradation in its quality of service. After demonstrating discrimination or degraded service, the burden should shift back to the broadband provider, thereby sparing the edge provider of significant legal expense.

Quarantined from political forces, smart lawyers at the FCC set about drafting rules that would thread this needle—again, without resort to Title II reclassification. The agency released a Notice of Proposed Rulemaking (“NPRM”) a few months after the D.C. Circuit’s ruling, which explained that pay-for-priority deals would be subjected to a “commercial reasonable” standard, and “prohibited under that rule if they harm Internet openness.” In other words, such deals were presumed to be commercially reasonable unless an edge provider could prove otherwise. The NPRM also proposed to adopt a rebuttable presumption that a broadband provider’s exclusive pay-for-priority deal would be commercially unreasonable. From an economic perspective, those two strokes were utterly brilliant, as they efficiently placed the burden on the appropriate party.

Not so, said John Oliver and 3.7 million angry letters ostensibly submitted to the FCC. (Given the esoteric language of those letters, which invoked Title II authority, I suspect that a great many were form letters generated by public-interest groups clamoring for Title II-based solutions.) Ever since that political groundswell, the Chairman has backpedaled from the elegant, light-touch solution of the NPRM.

Indeed, key players at the FCC are trying their best to create the impression that every path to the finish line must be routed through Title II. Consider this October 27 FCC blog posting by three high-ranking FCC officials, explaining the remaining policy options on the table:

Panelists at the opening roundtable, which focused on tailoring policy to harms, debated paid prioritization—a topic central to many comments in our record.  Some parties have urged a flat ban on these practices. Others believe a presumption that paid prioritization violates the law would protect Internet openness. This is a central issue: how best can the Commission prevent harm to the virtuous circle of innovation, consumer demand, and broadband deployment, which unites the interests of consumers, edge providers, and other stakeholders?

Say what? How about that option that the FCC outlined in the NPRM, urged on by the D.C. Circuit, in which pay-for-priority deals were presumptively reasonable unless a complainant could prove that they “harm Internet openness.” By removing that critical option from the conversation, Title II seems all but inevitable.

Notwithstanding this sleight of hand, the Chairman still has two solutions on the table: A political-free solution embodied in the NPRM that draws from the FCC’s 706 authority and hugs closely to the D.C. Circuit’s decision, and a highly politicized solution drafted by a conflicted party—seeking to coordinate a price-fixing conspiracy for an input (priority) via regulation—that would reclassify a portion of a broadband providers’ network as a Title II service.

If the Chairman can’t figure out which solution is better for the dual task of protecting consumers and promoting broadband investment, then perhaps the two Republican commissioners should toss him a line by touting the virtues of the forgotten NPRM. Without it, he will fall deep into the abyss.

This piece is cross-posted from Forbes.