In the wake of last June’s formal death of net neutrality, ISP lobbyists are hard at work trying to convince the public that the coming fractured, non-neutral internet is going to be a truly wonderful thing. One particular goal for the broadband industry has been to warm the public to the idea of “paid prioritization,” a practice semi-prohibited by the FCC’s discarded 2015 rules. In the net-neutrality realm, paid prioritization refers to letting a content company (like Netflix) pay an ISP for preferential treatment on the network, whether that means faster speed or lower latency. The previous FCC argued such deals let companies buy an unfair advantage over smaller competitors, tilting the until-now level internet playing field on its ear. Such deals, the agency worried, let deeper-pocketed companies buy a distinct market advantage over smaller companies, startups, nonprofits or educational institutions.
For example, ESPN could pay companies like Comcast or AT&T for priority treatment of its packets and services, allowing it to reach subscribers more quickly at higher quality. Smaller competitors that can’t pay for this special treatment would be relegated to second-class status on the internet, a daunting prospect for operations on a budget.
“A company like, say, Netflix can afford to pay a princely sum to make sure its service gets to users as quickly and cleanly as possible,” the EFF recently wrote in its primer on paid prioritization. “The man in his dorm room that just invented a better version of Netflix in his spare time cannot.” And while it should be obvious why such “fast lane” arrangements are a bad idea, ISPs have been trying to redefine paid prioritization as a uniquely positive thing.
For example, Tennessee representative Marsha Blackburn, generally seen as a rubber stamp for broadband-industry giants, recently argued that such fast lanes should be viewed in the same way as priority mail and TSA Precheck, the latter of which (at least theoretically) speeds up your passage through airport security. "In real life, all sorts of interactions are prioritized every day," Blackburn proclaimed in a subcommittee hearing on paid prioritization last April. “If you have ever used Priority Mail, you know this to be the case. And what about TSA Precheck? It just might have saved you time as you traveled here today,” Blackburn argued. “If you define paid prioritization as simply the act of paying to get your own content in front of the consumer faster, prioritized ads or sponsored content are the basis of many business models online, as many of our members pointed out at the Facebook hearing last week." But Blackburn intentionally conflates normal network prioritization (say, of essential telehealth applications) with anti-competitive paid prioritization. She also intentionally omits the fact that the FCC’s 2015 Open Internet Order specifically granted exemptions for telehealth, educational services, smart home devices, VoIP and other “specialized services.”
A new study released this week by the Information Technology & Innovation Foundation takes the same approach, insisting that consumers and activists should simply “stop worrying” and “enjoy the fast lane.” The ITIF is one of countless ISP-funded think tanks that enjoy muddying the discourse waters for the benefit of telecom monopolies like Comcast. “Prioritization and other mechanisms that differentiate data traffic are the only economical ways to radically improve the performance of broadband given the wide diversity of different applications that broadband networks must support, and would encourage further innovation throughout the Internet,” claimed the organization. But again, nobody wants to ban all prioritization, just blatantly anti-competitive paid prioritization. It’s a conflation the industry has been intentionally making for years. The American Enterprise Institute, another think tank heavily funded by broadband providers, has been busy making similar claims on its own website, again trying to insist that banning anti-competitive paid prioritization is somehow a ban on all prioritization. Pretending that banning anti-competitive, paid-prioritization deals will somehow harm innovation and legitimate services has long been a favorite talking point for ISPs. Both Verizon and Comcast have routinely claimed in filings to the FCC that restrictions on paid prioritization will hurt the sick and disabled, something that has never been true. So why, after securing such a major lobbying win with the death of net neutrality, is the broadband industry still trying to confuse the public into believing anti-competitive paid prioritization will be good for them? The FCC’s repeal of net neutrality rests on shaky ground thanks to the agency’s bizarre behavior during the repeal (ranging from making up a DDOS attack to blocking a law enforcement investigation into fraud during the comment period). ISPs are also nervous about the fact that half of the states in the union are currently exploring their own net-neutrality rules, most of which prohibit anti-competitive paid prioritization.
To counter these threats, the broadband industry has been trying to convince loyal lawmakers like Blackburn to pass bogus net-neutrality legislation written by ISP lawyers and lobbyists with an eye on pre-empting tougher state or federal laws. The House and Senate versions of these ISP-sanctioned alternative bills only ban things ISPs had no real intent on doing anyway (like the outright blocking or throttling of competitors). They do, however, eliminate restrictions on more creative anti-competitive behavior, like paid prioritization, interconnection shenanigans, and usage caps and zero rating.
And while ISPs are eager to take full advantage of net neutrality’s repeal, they’re wary of providing any additional ammunition for the looming lawsuit against the Ajit Pai FCC by consumer groups and companies like Mozilla. As such, they’re currently on their best behavior, something that isn’t likely to change until the legal fight has been settled.
Whether it’s Comcast’s wireless service charging you more money just to watch HD video, or AT&T exempting its own content from usage caps while penalizing competitors, ISPs are eager to craft a new, fractured internet where an ISPs own content—or the content of their wealthiest partners—are given a distinct market advantage. And while most ISPs continue to insist they’d never consider such anti-competitive arrangements, their track record of past transgressions make such promises hollow. Comcast, for example, mysteriously removed all promises to avoid paid prioritization from the company’s website the exact same day the FCC announced its repeal.
Large ISPs desperately want the press and public to believe that this long history of anti-competitive behavior won’t be made worse by the legalization of anti-competitive paid prioritization. But anybody that’s spent more than five minutes dealing with the likes of Charter, Comcast, Verizon or AT&T should fundamentally know better.