Net neutrality defenders actually fine if Internet users decide what goes fast

(Rick Wilking / Reuters)
(Rick Wilking / Reuters)

As the Federal Communications Commission wraps up its open comment period for its net neutrality proceedings, AT&T is in with its 99-page contribution. And there's one section in particular that has caught the attention and earned the ire of some fans of neutrality regulations. It has to do with the idea that in some cases, some of its customers might chose to, say, dedicate more of the bandwidth that they pay for to certain applications, effectively degrading others. Here's AT&T:

For example, an AT&T customer might choose to prioritize latency- and jitter-sensitive VoIP packets or video conference packets over ordinary web browsing packets, and AT&T would honor those designations over that customer's "last mile" Internet facilities. There is no conceivable reason that such services, demanded and used widely by business customers today, should be foreclosed by regulatory fiat.

More simply put, you, AT&T broadband customer, might choose to curate your broadband connection so that your Vonage calls generally ring through with a quickness but are delayed a bit when you're engaged in a heavy "World of Warcraft" session.

That can sound a lot like the "paid prioritization" that is at the heart of today's net neutrality debate, and the tech site Ars Technica has branded what AT&T has in mind as a "giant loophole" in a "'fast lane' ban."

But AT&T cites support for such "user-directed prioritization" on the part of high-profile net neutrality advocacy groups like the Washington-based Center for Democracy and Tech and the Massachusetts-based Free Press. And there's good reason for that: Those groups are perfectly okay with the idea.

"The issue comes down to who's deciding what gets priority," says Andrew McDiarmid, a senior policy analyst at CDT. "It's much less of an issue if a user makes the technical decision about what gets priority, and it's not the same thing as a ISP being in the position of deciding winners and losers." Matt Wood is the policy director at Free Press, and perhaps no group has been as energetically and vocally in favor of the FCC adopting aggressive net neutrality regulations. Even he says: "People should be free to use their connection any way they want. That's the point of all this."

That AT&T is making CDT and Free Press's thinking the centerpiece of its arguments is a sure sign that we've reached the jiu-jitsu phase of the net neutrality debate, where the best move you can make is one that uses your opponents's assets against it.

If it's a clever move by AT&T, it's not to say that the advocacy groups are loving the focus on user-directed prioritization. Some worry that it's using a rare point of consensus to back the FCC into sticking with the authority it has under Section 706 of the Telecommunications Act, which has to do with encouraging the adoption of broadband, rather than making the leap now being advocated for by dozens of tech companies of treating broadband as a Title II service, which applies to essential "common carrier" services such as U.S.telephone lines.

A bit of history is in order. Back during the George W. Bush administration, the FCC opted out of treating broadband as a Title II service. In January's landmark Verizon v. FCC decision, the U.S. Court of Appeals for the D.C. Circuit said that if the FCC isn't going to formally treat broadband as a common carrier service, it can't fudge and regulate it as such without admitting that's what it's doing. That's what the agency was up to, said the court, "in requiring broadband providers to serve all edge providers without 'unreasonable discrimination.'" The flip side of a rule like that is that it requires that providers "serve the public indiscriminately." So in order to have authority under Section 706, goes the court's thinking, the FCC has to allow ISPs to discriminate somewhat. Otherwise, that's Title II by any other name, and thus unacceptable.

Hence, goes the reasoning, by embracing "user-driven prioritization," the FCC would be lodging ISPs more firmly under the more lightly-regulated Section 706, which is where AT&T and other broadband providers badly want to stay.

Matt Wood of Free Press dismisses AT&T's argument as a "legal sleight of hand," and, in the end, the FCC may well, too. But the more that the big ISPs can find points of consensus with its opponents that actually serve to bolster their own arguments, the better for them. If the FCC decides that it doesn't want to overhaul how it deals with broadband, it can point to nuances like "user-directed prioritization" to argue that it's doing all that advocates want, even if it's not doing it exactly the way that advocates want them to do it. The debate over net neutrality "began in earnest over a decade ago," points out AT&T's senior vice president Bob Quinn in a blog post introducing the company's FCC comments. And the company has learned a thing or two about how to get what it wants out of it.

Nancy Scola is a reporter who covers the intersections of technology and public policy, politics, and governance.
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