AT&T Washington exec Jim Cicconi says that AT&T has no "plans or intent" to adopt the "discriminatory business models" that Title II advocates say could create Internet fast and slow lanes.
In a blog post, Cicconi said no ISPs have expressed a "desire or right" to engage in any of the following practices—and AT&T has no plans to change its position. He also argues that classifying Title II as Internet access would not only not prevent paid priority, it would allow it and could shield it.
• “Pay-for-Play – where an ISP might refuse to carry content unless the content company pays them additional fees above normal transit costs.”
• “Pay-for-Priority – where edge providers might pay ISPs for prioritizing traffic on the consumer’s broadband Internet access service."
• “Vertical Prioritization – where an ISP might prioritize its own vertical content and services on the user’s broadband Internet access service."
Cicconi says the current discussions about network neutrality don't appear to have a common understanding of paid prioritization, the FCC's 706 authority or Title II regulation.
He pointed out that the court's ruling in the Verizon decision—remanding no-blocking and anti-unreasonable discrimination rules back to the FCC—allows the FCC to enforce ISP statements of broadband practices.
AT&T also pledged to operate its networks consistent with the 2010 open Internet order.
Cicconi said there is no paid prioritization as described by Free Press—pay-for-play, pay-for-priority, vertical-prioritization—and no one plans to do any of that, he asserted, saying ISPs have broadband practices policies that prohibit them, which the FCC can already enforce.
A divided FCC has voted to propose using Sec. 706 authority—promoting advanced telecom to all Americans—to justify new no-blocking and no (commercially) unreasonable discrimination, but chair Tom Wheeler also has said if he has to classify broadband access under some form of Title II common carrier regs to restore the rules, he will.
Cicconi said the 706 route is the way to go. "We think Chairman Wheeler has it right."
As for Title II, Cicconi says that the big problem is that the "plain language" of Title II allows paid priority, so long as it is offered to similarly situated buyers on similar rates and terms. "Differentiated terms of service aren’t the exception under Title II, they are the norm," he says.
He says another problem with Title II is that it could turn edge providers into common carriers for some of their services.
"In the original Internet classification litigation, the Brand X case, the Supreme Court in 2005 affirmed the FCC’s decision to lightly regulate Internet access service by looking at the entirety of the service being sold, concluding that if the service involved computer processing – as all Internet services do – then Title II regulation should not apply," he says. "Proponents of Title II regulation, however, point to Justice [Antonin] Scalia’s dissent in Brand X to argue that the majority got it wrong."
"Scalia stated that '[w]hen cable company-assembled information enters the cable for delivery to the subscriber, the information service is already complete… All that remains is for the information in its final, unaltered form to be delivered via telecommunications to the subscriber.' Rather than look at the entirety of the service being offered, Scalia would conclude that every service sold over the Internet—be it access or content—has a Title II transmission component. The implications of that rationale for every Internet company are enormous. It would capture movies purchased from Google Play or iTunes, videos downloaded from YouTube, and OTT subscription services like Netflix and HBO Go."
Add that is only one of a host of implications of Title II, he says, barely scratching the surface of potential harms, which also included "strangling" broadband investment.
"Even after the court’s decision in Verizon, we pledged to abide by the 2010 rules," he writes. "The Open Internet principles on our website haven’t been changed. We know they bind us to the pre-Verizon standard. They stand there as a public pledge that we won’t engage in the practices some fear. And that we’re firmly on the side of the proverbial 'guy in the garage,' building a new idea that could change the world. After all, we were founded by a guy like that (though maybe it wasn’t a garage since cars weren’t around yet). But the bottom line is the same. We invented lasers, TV, semi-conductors, and the Big Bang theory. We’re with the innovators. We’re with those who see the Internet as a liberating technology."
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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