ISPs Seen Likely To Conform to Most Net Neutrality Rules—Even if They're Not Rules
ISPs likely will follow many net neutrality rules, even if February's FCC order (see 1504100046) is overturned by a court or overridden by Congress, said two lawyers on different sides of the issue. The order's prohibition on blocking or throttling likely will be followed by broadband providers even absent rules, said Center for Democracy & Technology General Counsel Erik Stallman, who supports the order, and Convergence Law Institute Vice President Solveig Singleton, who calls herself skeptical of net neutrality. Speaking Thursday at a Reed College legal network event, they said experimentation with paid prioritization might happen without the order, which bans it unless a waiver allows certain content to receive higher priority. Real-time video could be subject to such experimentation if allowed, Singleton said. ISPs "view the Internet as essentially a two-sided market, and they would like the ability to charge both sides of the market" through paid prioritization, Stallman said.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The speakers agreed that interconnection complaints are likely, which the order would allow. The formal and informal complaints and advisory opinions the FCC could issue on net neutrality "have the potential to proliferate quite a lot," Singleton said. "Anytime anyone is involved in some kind of a negotiation, it’s possible that they would see an advantage to saying, 'Let's see what the FCC would say about this,’" she said. "I could see quite a lot of complaints being generated." Cogent may file such a complaint against ISPs that have congestion at interconnection points between their networks and Cogent's, CEO Dave Schaeffer said in an interview Friday (see 1505010033).
The case-by-case basis of some aspects of net neutrality rules are reflected in the order's treatment of so-called zero-rating, which exempts certain content from data usage limits, Singleton and Stallman said. "There seems to be a lot that will be decided" on a case-by-case basis, Singleton said. "That's not necessarily getting you an atmosphere of innovation without permission, at least for some players." Zero-rating "will be a tough issue for the FCC to deal with," Stallman said, though to him the idea of permissionless innovation is the ability of any player to connect to the network. Zero-rating such as for Wikipedia can spur broadband adoption, but zero-rated content makes other content that's subject to data usage limits less appealing to consumers, Stallman said. "The mere fact that there is a cost to it suddenly begins to discourage usage of the thing that's not free."
Singleton and Stallman don't expect the FCC to set broadband service rates, even though the order would allow such a proceeding. "I'm not worried that is going to happen," Stallman said. "I don’t think it’s a power grab or a secret plan to do rate regulation." The FCC's "very strong culture" makes rate regulation unlikely, even though nothing now statutorily prevents that, Singleton said. She said she fears that "the only thing that is restraining the FCC from doing possibly peculiar things is the internal agency culture." Singleton and Stallman said they don't expect the FCC under the Obama administration to levy USF charges on broadband bills.
The panelists also don't expect Congress to successfully override the net neutrality order, though they said that among potential different legislative tacks a resolution of disapproval has the best chance of passing. It's "unlikely there will be enough of a consensus" on any congressional approach to prevail, Singleton said. She said a decision could go either way if the U.S. Court of Appeals for the D.C. Circuit gets the case as the FCC wants (see 1504300064). "The D.C. Circuit and the FCC have a fair amount of leeway under the precedents in terms of what they can do," though White House involvement in net neutrality may raise the hackles of the D.C. Circuit concerned the FCC didn't deliberate carefully enough, Singleton said. Stallman is "pretty comfortable with the justification that the FCC provided for reclassifying" broadband as a Communications Act Title II service, he said. Citing the about 4 million comments from individuals backing reclassification, he said it's "an awful big stretch" to contend that the commission didn't give advance notice it might go that route.