How the Big ISPs Prioritize Confusion in the Net Neutrality Debate

April 16, 2018

Over the past few months of the net neutrality debate, the largest Internet Service Providers (ISPs) in the country, like AT&T and Comcast, have tried to profess that they have always been pro-net neutrality.  These statements, like “We do not block, slow down or discriminate against lawful content”, however, are neither commitments about the future nor descriptions of the past.  They speak only in the present tense.  Maybe today, Comcast says “We do not block, slow down or discriminate against lawful content,” but what about tomorrow?  AT&T says, “We have publicly committed to these principles for over 10 years,” but in reality, for at least 10 years, the company has been one of the most powerful forces trying to block serious net neutrality efforts in Congress, in the courts and at the FCC.

Cryptic comments like these are nothing new.  We have previously discussed how FCC Chairman Ajit Pai confused the terms “block” and “throttle” before he repealed the 2015 Open Internet Rules.  Tuesday’s House Energy & Commerce Committee’s Subcommittee on Communications and Technology hearing on paid prioritization will cover many topics important to net neutrality, but also many that bear no relation.  Here are some examples of how the big, incumbent ISPs prioritize confusion when they talk about net neutrality:

Paid Prioritization

The hearing will cover paid prioritization, which is a crucial topic in the net neutrality debate, but also one that has been frequently confounded.  FCC Chairman Ajit Pai has said that paid prioritization of certain internet traffic can be good for telemedicine and emergency services: “By ending the outright ban on paid prioritization, we hope to make it easier for consumers to benefit from services that need prioritization – such as latency-sensitive telemedicine.”  This seems odd because such schemes could give an unfair advantage to the largest health systems over smaller health systems that cannot pay the increased rates. Indeed, rural healthcare could suffer as medical practices and community health centers that are struggling to provide adequate care for those in the most need would have to put more of their scarce resources into getting broadband.  Furthermore, large institutions like hospitals, universities, and factories usually do not buy the kind of “best efforts” broadband connections that are subject to the net neutrality rules.  They usually require dedicated connections with service guarantees, like “business data services” (BDS).  Last year, in one of his first major actions as Chairman, Pai changed the rules for BDS connections, which will allow the incumbents, who already control access to these crucial broadband bottlenecks, to arbitrarily hike their rates on institutions like hospitals, universities and factories.  Paid prioritization plans would be just another way to extract more money from these institutions.

Specialized Services

David Cohen, Comcast’s Senior Executive Vice President and the Chief Diversity Officer, recently said, “How about if we agree to a prohibition on paid prioritization and we have a limited exception created in some way for this concept of specialized services.”  The so-called “specialized services” to which Cohen refers were allowed under the 2015 Open Internet Order.  Comcast vociferously opposed it, however, and then pushed for the repeal of those rules last year by FCC Chairman Ajit Pai.  In reality, the FCC in 2015 stated that the Open Internet rules did not apply to ISP services that provided connectivity for things like heart monitors, energy consumption sensors, automobile telematics, and certain applications and content for schools as long as they were separate from the broadband internet access service that they provide as a mass market retail service to consumers.  There is legitimate concern that companies like Cohen’s could try to exploit specialized services as a way of achieving the goals of paid prioritization.

Content Delivery Networks (CDNs)

AT&T likes to say that tech companies like “Google, Amazon and Netflix have spent billions of dollars on content delivery networks (CDNs) that enable them to outperform less well-financed rivals that have not obtained similar functionality.”  The implication is that using competitive services like CDNs is just another form of paid prioritization. This is, at best, oversimplifying the issues. Describing what goes on with networks is hard and can be very esoteric, but CDNs are really just about taking congestion off a network and bringing the content closer to the customer.  CDNs actually help ease congestion on networks. AT&T should know that because it has its own CDN.

“Search Neutrality”

The hearing may also cover the canard of “search neutrality” as the background memo for the hearing says, “Search engines, for example, optimize result pages to put some websites higher on the list than others. In the case of a search engine on your mobile phone, it will prioritize the mobile sites in the search. Some sites pay to have their website prioritized in a search query, whereas other affiliate companies can have their pages prioritized through the parent companies’ search engine free of charge.”  “Search neutrality” is the argument that because ISPs should treat broadband traffic similarly, it follows that search engines should treat all search results similarly, giving equal ranking, for example, to high quality news content and low quality webspam.  We have seen this policy proposal in Europe; a discussion of its faults may be found here at Project DisCo. First, this confuses the real issues around net neutrality, which concern traffic moving on a network.  There is a crucial difference between products like search, which features in different ways on almost every website, and broadband, for which there is still almost no competition in most places throughout the United States.  Second, there are several problems regarding how search or “platform neutrality” could affect the internet ecosystem and competition in the U.S. Ultimately, there are questions about how far this could extend as it could forbid the integration of search with an operating system, a mobile device, or smart home device.

Broadband Investment

The biggest ISPs say that the 2015 Open Internet Order caused a significant decline in broadband investment.  This view is wrong. First, despite claims from the biggest ISPs, Comcast, Charter and Frontier actually increased their investments significantly since the 2015 Open Internet Order.  Second, companies make investment decisions years in advance based on a myriad of factors —  from where they can place cell phone towers to interest rates — not just hypothetical regulations.  Third, legal certainty is important for emerging technologies and the marketplace as a whole. Business owners want certainty, and the FCC’s decision to repeal the Open Internet rules exacerbates uncertainty.

While Congress discusses paid prioritization on Tuesday, the discussion should stick to the facts and rise above the rhetoric the big ISPs frequently use to prioritize confusion on net neutrality.

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