Leahy: No Paid Priority … Promise?
WASHINGTON — Sen. Patrick Leahy (D-Vt.), chairman of the powerful Senate Judiciary Committee, wants Internet service providers to take the pledge — the not-paid-priority pledge, that is. He is pressuring them to promise not to create Internet “fast lanes.”
The “lane” issue caught fire after Federal Communications Commission chairman Tom Wheeler proposed a “commercially reasonable” standard for a new anti-unreasonable- discrimination Open Internet rule, though he has repeatedly pointed out that was a way to craft an antidiscrimination rule that would pass muster in court without imposing what ISPs have consistently signaled was the nuclear option of reclassification under Title II of the Telecommunications Act.
That option remains on the table, Wheeler has said.
Leahy last week sent letters to the top ISPs — Comcast, Time Warner Cable, Charter Communications, AT&T and Verizon Communicatiions — pressing them for “concrete commitments” not to join paid-prioritization agreements “charging websites for priority access over the Internet.”
At a field hearing in Vermont in July, Leahy said paid priority must not be allowed and he could not support any FCC approach short of a flat-out ban.
Leahy also wants ISPs to promise “not to engage in any activity that prioritizes affiliated content or services over unaffiliated content or services, helping to ensure that vertical integration does not threaten competition online.”
Comcast is already subject to such restrictions per its NBCUniversal deal conditions, and Time Warner Cable systems would be subject to them as well through 2017, and likely beyond, if the FCC approves the proposed merger.
“Allowing the Internet to become a two-tiered system of ‘haves’ and ‘have-nots,’ controlled by a small number of corporate gatekeepers, would destroy everything that has made it one of the greatest innovations in human history,” Leahy wrote.
Wheeler has said much the same thing, pointing out that Title II is still on the table, but that even under a Section 706 regime, anti-competitive paid prioritization leading to fast and slow lanes would be a nonstarter. Critics are concerned that a future FCC, left to decide what is and isn’t commercially reasonable, might make a different call, and that without a flat prohibition, it would be tough to address violations after the fact through a process of identifying and challenging such practices.
Leahy has teamed up with Rep. Doris Matsui (D-Calif.) to sponsor a bill that would ban paid prioritization, but legislation of any type is a long-shot to a no-shot proposition in a divided Congress.
At press time, Comcast was working on a response that could be ready by today (Oct. 27). AT&T and TWC had no comment, but said they intend to respond to Leahy.
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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.