The FCC finds itself in a tough bind. It is facing incredible public pressure to reclassify broadband Internet access as a Title II telecommunications service, while knowing full well that this would lead to years of costly litigation and uncertainty for the industry. On the other hand, its proposal to allow commercially reasonable paid prioritization of Internet traffic has been derided as opening the door to two Internets – one that would provide fast transmission for companies willing to pay for it, and another inferior one for the rest of us. What is a beleaguered Commission to do?

Well, like a typical politician faced with a decision they know will make a sizable group of constituents unhappy, the Commission’s first move was to show how incredibly serious it is in confronting the issue of Internet regulation. Thus, on July 23rd, the Commission issued an Enforcement Advisory putting Internet Service Providers (ISPs) on notice that their service practices must be transparent to customers:

Providers of broadband Internet access services must disclose accurate information about their service offerings and make this information accessible to the public. This requirement, known as the Open Internet Transparency Rule, has been in full force and effect since 2011. The Transparency Rule ensures that consumers have access to information that helps them make informed choices about the broadband Internet access services they buy, so that consumers are not misled or surprised by the quality or cost of the services they actually receive…The Commission takes the requirements of the Transparency Rule seriously, and we intend to take enforcement action against providers that do not comply with it.

Let us be clear, however. This Advisory, which may be impressive to those outside the industry, will have no effect on the behavior of ISPs. They are already well aware of the Transparency Rule and know that violations face FCC enforcement. Instead, the Advisory was directed at consumer advocates and the public as a way to clamp down on pressure while the FCC decides what to do next.

And what should the Commission do next? It certainly won’t get much help from the hundreds of thousands of public comments which served only to repeat the talking points of both sides of the Internet regulation debate.  Instead, we believe the Commission should consider carefully the unique proposal made by AT&T, which would allow paid prioritization of Internet traffic only when directed by the end user customer. As AT&T states:

Net neutrality advocates have long argued that paid priority arrangements pose a threat to the open Internet and therefore justify regulation. In making these arguments, however, they have not claimed that all types of commercial prioritization arrangements are problematic. Instead, they have conceded that paid prioritization is a concern only when it is not directed by end users. These advocates have thus acknowledged—and rightly so—that “user-driven prioritization is unobjectionable and should be a capability that is preserved in the course of enacting any new Internet openness rules.” As the Center for Democracy & Technology explained in 2010, “CDT and others have repeatedly made a clear distinction between paid prioritization and user-driven prioritization”; prioritization that “would occur on the user’s last mile facilities at the user’s request” would be permissible. That is because user-driven prioritization, CDT emphasized, poses no threat to “Internet openness.” (Docket 14-28, AT&T Comments, filed July 15, 2014, at pp. 27-8. Italics in original)

Thus, for example, end users watching Netflix or taking an online educational course could pay more to ensure that they will obtain the bandwidth necessary to ensure uninterrupted service. Or, hospitals in rural areas could choose arrangements that ensure superior connections to outside specialists while conducting rare operations. The examples are endless, the important point being that the prioritization is chosen by the customer, not the ISP.

While, it is clear that AT&T favors this approach and it would probably be supported by companies like Verizon and Comcast which also oppose broadband reclassification, it is less clear how consumer advocate organizations would now respond. While they were favorable to this approach in the past, they might now oppose it if it allows the Commission to forego reclassification. Nevertheless, this is an Internet regulation solution that at least appears to have the backing of both sides of the debate and it should be seriously considered. This plan, along with the enforcement authority the Commission already has (as noted in its Advisory) could go a long way toward solving what has become an intractable problem for the FCC.

By Andrew Regitsky, President, Regitsky & Associates