FCC Bans on Paid Prioritization, Two-Sided Markets at Risk, Could Spur Hill Action, Cleland Says

FCC legal vulnerability on key net neutrality policies beyond Title II reclassification could help spur congressional broadband action, said Scott Cleland in a precursor.com blog preview of Friday’s oral argument at the U.S. Court of Appeals for the D.C. Circuit. “Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality ‘policy canon’ i.e. bans against ‘paid prioritization’ and ‘two-sided markets’ (only users should pay), are also likely unlawful, even under Title II, sans new legislation,” said Cleland, chairman of NetCompetition, an “eforum” he says is “supported by broadband interests.” The paid prioritization ban effectively forces broadband ISPs to carry Internet edge traffic for free, and while Title II of the Communications Act gives the FCC authority to ensure “reasonable” pricing, such free service “is not something tariff precedents have found ‘reasonable,’” he said Sunday, citing a Phoenix Center paper. Cleland said the ban on a two-sided Internet service market also was at odds with Title II precedent on “1-800 calls, yellow pages advertising, etc.”