Can “Bright Line” FCC Title II Discrimination Bans Be Just and Reasonable?

Published February 12, 2016

Net neutrality absolutists are overreaching yet again in their push for a practical FCC ban of ISP zero rating offers under the FCC’s case-by-case “General Conduct Standard” review, by claiming violations of the “bright-line rules” in the FCC’s 2015 Open Internet Order against blocking, throttling and paid prioritization.

The problem here is that net neutrality absolutists, in exploiting the political pejorative power of the word ‘discrimination,’ have politically oversold their Title II net neutrality policy as “bright-line” ‘non-discrimination’ bans, implying no discrimination allowed, when Title II actually only bans “unjust and unreasonable discrimination.”

This is a distinction here with a huge difference; and it apparently is giving the net neutrality absolutists fits. They want to imagine that Title II prohibits their absolutist ‘no discrimination’ frame when it clearly does not.

They want to find a technical “gotcha” in every zero-rating or sponsored data offering, no matter how unreasonable their conclusion, so they can politically ask it be banned by the FCC under their concept of what a ‘no discrimination’ principle should be.

With T-Mobile’s Binge On, Stanford Professor Van Schewick charges that Binge On violates net neutrality because it favors commercial content over Google-YouTube’s user-generated videos. How is it unreasonably discriminatory when most every other company can interface with T-Mobile’s non-discriminatory Binge On interface, but the world’s most dominant and most technically-advanced digital video distributor, Google-YouTube, somehow can’t figure out what everyone else has figured out?

EFF also tested T-Mobile’s Binge On offering and charges that it violates net neutrality because it throttles everyone the same way to provide more data for less cost. How is that unjust and unreasonable network management?

With the news that Verizon’s Go90 video service is now using Verizon’s FreeBee Data 360 offering, some are insinuating sponsored data plans like this are somehow a net neutrality violation when offered as an “open, non-exclusive service available to other content providers on a non-discriminatory basis.” How is its unreasonably discriminatory when any content provider can enjoy the same thing Go90 does?

The problem here is that the net neutrality absolutists demanded the FCC adopt their politically correct, “bright-line” ‘no discrimination’ version of net neutrality, and not what Title II allows under the law and decades of FCC and court precedents.

The FCC’s Open Internet Order states: “Clear, Bright-Line Rules: Because the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet—Blocking, Throttling, and Paid Prioritization—this Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access service.” (Para 14) (Bold added for emphasis)

In promising not just net neutrality rules, but “bright line” (i.e. absolute) open Internet rules, and in claiming the three banned practices – blocking, throttling and no paid prioritization – “invariably” (i.e. absolutely always) harm the Open Internet, the FCC has created a real problem for itself.

How can the FCC reasonably rule under its ‘General Conduct Standard’ that any action that blocks or throttles Internet traffic can never be reasonable network management when the FCC itself is requiring ISPs to block robo-calls to users, or when ISPs are expected by the FCC to filter (i.e. block) viruses and malware, and to throttle the traffic of edge-driven denial-of-service-attacks that routinely assault ISP networks.

How can the FCC reasonably enforce absolute “bright-line” bans on blocking and throttling when the FCC Open Internet Order states: “The record broadly supports maintaining an exception for reasonable network management. We agree that a network management exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to optimize overall network performance and maintain a consistent quality experience for consumers while carrying a variety of traffic over their networks.” (para 215)

The FCC once again has got itself in a pickle in promising conflicting outcomes. On one hand it tells the public, industry and the reviewing court absolutely that blocking and throttling harm the Open Internet, but on the other hand it rules an exception is necessary for ‘reasonable network management.’

In conclusion, why FCC net neutrality policy is such a mess is that the absolutists are really not complaining about ISP “blocking, throttling, or paid prioritization.”

Their real beef is much less a Title II regulatory unreasonable discrimination problem, and much more akin to a lawsuit under antitrust law that alleges an ISP is a vertically-integrated monopoly that needs to be forever enjoined by a court from vertical integration.

And it is telling that the net neutrality absolutists effectively are trying to use Title II authority as antitrust law to preemptively ban a whole category of market participants from certain types of market behavior, with no investigation or finding of market power, and with no evidence that the targeted market participants actually did anything wrong, because no court would entertain such a baseless and senseless notion of antitrust law.

At bottom, net neutrality absolutists are demanding the FCC preemptively and absolutely ban market behaviors that no American law considers unreasonable on their face.

[Originally published at the Precursor Blog]

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.