An AT&T executive suggests that the federal judges who upheld the FCC’s Title II classification of ISPs last year have indicated that Title II is not even an effective tool for doing what it was supposed to do: preventing blocking or slowing of certain internet traffic by ISPs.
Hank Hultquist, vice president of Federal Regulatory at AT&T, said in a blog post that it might be purely academic in nature because ISPs haven’t indicated any real interest in pursuing fast and slow lanes despite the “shrill claims” by some. But after reviewing a recent court decision declining to rehear the Title II order, the majority’s view became clear.
“In the past, supporters of Title II often alleged that without reclassification, ISPs would be free to block unpopular opinions or viewpoints that they disagreed with,” Hultquist wrote. “In the understanding of the D.C. Circuit panel majority, it seems that the Title II order does not touch such practices as long as an ISP clearly discloses its blocking plans to customers.”
Hultquist cited a D.C. Circuit court concurrence written by Judges Sri Srinivasan and David S. Tatel, saying that “the net neutrality rule applies only to ‘those broadband providers who hold themselves out as neutral, indiscriminate conduits’ to any content of a subscriber’s own choosing,” (quoting the underlying decision). The concurrence goes on to say, “the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear that it provides a filtered service involving the ISP’s exercise of editorial discretion.”
He said that it appears that a variety of practices, which have at various times been alleged to violate net neutrality, may in fact fall outside the scope of Title II. For example, “MetroPCS’s plan to offer a low-cost tier blocking most video streaming (except for YouTube), as well as the original version of T-Mobile’s Binge On, not to mention the “net neutrality worst case” scenario. Apparently, all of those plans, either in reality or at least in theory, would fall outside the Title II order if accompanied by adequate disclosures.”
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FCC Chairman Ajit Pai drew applause from the wireless industry last month when he outlined his plan to overturn net neutrality rules adopted under his predecessor Tom Wheeler. Pai laid out his proposal to return to what he described as a light-touch approach that would reclassify broadband as a Title I information service rather a Title II common carrier service. The public comment period runs until August 17.