Commentary

Verizon Proposes Net Neutrality Compromise

Verizon today floated a new compromise over Net neutrality. The telecom suggests in a new blog post that it won't sue over any Net neutrality rules that ban “harmful paid prioritization,” provided the Federal Communications Commission doesn't reclassify broadband service as a utility.

“Don't believe those who say that further litigation is inevitable,” general counsel Randal Milch writes. “The bottom line is that effective Net Neutrality rules -- without further judicial intervention -- are within reach, if the FCC takes the Section 706 route it originally proposed.”

Section 706 of the Telecommunications Act tasks the FCC with promoting broadband deployment.

Earlier this year, the FCC proposed grounding a new set of Net neutrality regulations in that section of the statute.

Advocates of open Internet principles countered that Section 706 wouldn't allow the FCC to prohibit broadband providers from charging content companies extra fees for fast delivery -- a practice known as paid prioritization. Net neutrality proponents argued that the only way for the FCC to effectively ban those types of paid prioritization deals was to reclassify broadband as a public utility, in which case it would be subject to the same common carrier rules that telephone companies must follow.

Advocates rallied support for that proposal, resulting in a record 3.9 million comments to the FCC. Many of the people who wrote in urged the agency to reclassify broadband as a utility.

Verizon, like other Internet service providers, obviously doesn't want to see that happen. Just last week, the company submitted a white paper arguing that reclassification of broadband “would be unlikely to survive appeal.”

Now the company seems to be proposing that the FCC should use its section 706 authority to ban paid prioritization -- or at least “harmful” paid prioritization, however that ends up being defined -- and that ISPs like itself won't challenge the rules in court.

“There is the original section 706-based proposal,” Milch writes. “In this instance all of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC's authority to do so and taking them out of the litigation path."

While Verizon might think this offer sounds appealing, it's obviously problematic. For one thing, none of the large ISPs that Milch refers to have “waived” their right to sue. It's not clear that they even could enter into a binding agreement to refrain from suing over Net neutrality rules that haven't yet been enacted.

Besides, any ISP -- large or small, urban or rural, in business now or in the future -- could sue to overturn the neutrality rules.

Verizon obviously has no way to control whether ISPs other than itself do so.

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