AT&T, Cogent Clash at Net Neutrality Panel

AT&T Senior Vice President-Federal Regulatory Bob Quinn said the choice between a Section 706 and Title II path is a “stark one,” and it's possible, without reclassification, to deal with concerns about paid prioritization. Allowing prioritization, but only with consumer consent, would deal with January's U.S. Court of Appeals for the D.C. Circuit's net neutrality decision, which called for leaving room for individualized bargaining, he said. Consumers who use health videos, for instance, to communicate with their doctors could choose to have those prioritized, he said. Though the D.C. Circuit threw out the 2010 rules, Quinn said ISPs have continued to abide by them. James Assey, NCTA executive vice president, agreed during a separate panel discussion.

Intel has concerns with both approaches but prefers basing net neutrality rules on Section 706, said Peter Pitsch, executive director-communications policy. “We have a lot of concerns about how Title II would apply in practice.”

To Phillip Berenbroick, policy director of the Internet Freedom Business Alliance, which represents such startups as Tumblr and Etsy, Title II regulations are needed, particularly to protect smaller companies from paid prioritization. Smaller edge companies have “very few attorneys” to negotiate deals with ISPs, he said, and if they are unable to negotiate an agreement to be able to access consumers, “they're up the creek without a paddle,” he said. “In these circumstances, what happens is [the companies] go away.”

Title II bars unreasonable discrimination and would not have the power to ban all prioritization deals between ISPs and edge companies, said speakers on a separate panel, including Squire Patton's Jack Nadler. Progressive Policy Institute Senior Fellow and Economists Inc. Principal Hal Singer said the “incremental benefits” of a Title II approach doesn't warrant the “down side of exposing the economy and employees and consumers to the risk to the core of the network.” NCTA's Assey also said Title II wouldn't ban paid prioritization, but to come up with rules that would pass muster before the court, “we're willing to upset the apple cart” that's led to broadband expansion. Nadler and Singer acknowledged there could be an incentive for ISPs that have a terminating monopoly to consumers to discriminate, and some regulations may be necessary. Nick Degani, aide to Commissioner Ajit Pai, said if the commission moves forward with barring reasonable paid prioritization deals, it would be the first time the federal government has recognized the ability of ISPs to do reasonable paid prioritization. He echoed Pai, saying the best course may be for Congress to write net neutrality rules instead of the commission doing “gymnastics” by working any rules into the existing legal options.

The net neutrality debate remains contentious and has the potential to bog down “very rapidly” a potential Communications Act rewrite if they're considered together, said Greg Guice of Akin Gump, a former House Communications Subcommittee counsel. What happens depends in part on FCC Chairman Tom Wheeler, said Wiley Rein's Bennett Ross. Wheeler could force the Republican Congress' hand by getting the commission to approve a Title II approach, but also could work with Congress to find a compromise, Ross said. Bridging the gap between those who want nothing but Title II and those who say they can't live with classification is difficult, he said.

Though Democrats have in the past opposed a Title II approach, President Barack Obama's support for reclassification “definitely changes the dynamics," said David Grossman, senior technology policy adviser to Rep. Anna Eshoo, D-Calif. Many of the Democrats who'd opposed using Title II during the last net neutrality debate were fiscally conservative Blue Dog Democrats who are no longer in Congress, Ross said.

Advocating that the 1934 act be “blown up” to deal with the Internet age, Ross said rewriting it could be “bogged down” in a “brouhaha,” with some special interest groups fighting to preserve aspects of the act. “It's not going to get done in one legislative session. It might never get done,” he said. Though the act is 80 years old, certain core values like ensuring all Americans have access to services should be preserved, Guice said. Congress would be “less likely to be bogged down” by taking aspects of communications reform in small bites. Grossman said funding for FirstNet is likely to be a major issue next Congress.