For years, Comcast has been promising that it won’t violate the principles of net neutrality, regardless of whether the government imposes any net neutrality rules. That meant that Comcast wouldn’t block or throttle lawful Internet traffic and that it wouldn’t create fast lanes in order to collect tolls from Web companies that want priority access over the Comcast network.
This was one of the ways in which Comcast argued that the Federal Communications Commission should not reclassify broadband providers as common carriers, a designation that forces ISPs to treat customers fairly in other ways. The Title II common carrier classification that makes net neutrality rules enforceable isn’t necessary because ISPs won’t violate net neutrality principles anyway, Comcast and other ISPs have claimed.
But with Republican Ajit Pai now in charge at the Federal Communications Commission, Comcast’s stance has changed. While the company still says it won’t block or throttle Internet content, it has dropped its promise about not instituting paid prioritization.
Instead, Comcast now vaguely says that it won’t “discriminate against lawful content” or impose “anti-competitive paid prioritization.” The change in wording suggests that Comcast may offer paid fast lanes to websites or other online services, such as video streaming providers, after Pai’s FCC eliminates the net neutrality rules next month. With no FCC rules against paid fast lanes, it would be up to Comcast to decide whether any specific prioritization deal is “anti-competitive.”
We do not and will not block, throttle, or discriminate against lawful content. We will continue to make sure that our policies are clear and transparent for consumers, and we will not change our commitment to these principles. pic.twitter.com/19PFCPJ3TY
— Comcast (@comcast) November 22, 2017
“Comcast has never offered paid prioritization”
Comcast is the largest home Internet provider in the US, with more than 23.5 million residential Internet subscribers. In May 2014, Comcast Senior Executive VP David Cohen wrote the following:
To be clear, Comcast has never offered paid prioritization, we are not offering it today, and we’re not considering entering into any paid prioritization creating fast lane deals with content owners.
Six months later, Comcast made the promise again, saying, “We don’t prioritize Internet traffic or have paid fast lanes, and have no plans to do so.” Comcast said that it agreed with then-President Obama’s stance that there should be “no paid prioritization.”
The circumstances in 2014 were different than they are today. Back then, the FCC clearly intended to impose at least some restrictions on paid prioritization, and ISPs were trying to avoid the Title II classification. Comcast had also agreed to some limitations on paid prioritization as a condition on its 2011 purchase of NBCUniversal.
But the NBCUniversal conditions expire in September 2018, and Pai’s proposal would undo the Title II classification and get rid of the net neutrality rules entirely. Both legally and politically, Comcast now has an opening to retreat at least partially from its net neutrality promises.
Comcast’s change in strategy was evident in July of this year when Comcast urged the FCC to overturn the Title II order.
“[W]e do not and will not block, slow down, or discriminate against lawful content,” Comcast wrote at the time, omitting its previous promise to avoid paid prioritization.
The FCC, Comcast said, could remove the Title II classification while still having “clearly defined net neutrality principles—no blocking, no throttling, no anti-competitive paid prioritization, and full transparency.”
As it turned out, Pai’s final plan that will be voted on December 14 doesn’t even ban blocking or throttling. Comcast could thus pull back even further from its net neutrality promises, but as of last week it was still promising that it won’t block or throttle lawful Internet traffic.
The cable lobby group NCTA similarly promised this year that its members will not “block, throttle or otherwise impair your online activity,” but it made no promises about paid prioritization. In 2014, the NCTA said that “no ISPs offer” paid prioritization.
Comcast’s future fast lanes
The remaining question is how Comcast’s paid fast lanes would be implemented.
We contacted Comcast today to ask how it defines “anti-competitive paid prioritization.” A spokesperson did not answer that question but referred us back to previous Comcast statements on the topic.
Comcast’s promise not to “discriminate” suggests that its paid prioritization would be available to anyone who wants it and can afford it. Offering paid fast lanes to anyone at similar rates could help prevent the Federal Trade Commission from stepping in to block unfair trade practices.
Comcast’s July 2017 filing with the FCC offers some hints on how the ISP will implement paid prioritization:
[T]he Commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public. For example, a telepresence service tailored for the hearing impaired requires high-definition video that is of sufficiently reliable quality to permit users “to perceive subtle hand and finger motions” in real time. And paid prioritization may have other compelling applications in telemedicine. Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it. Commercial arrangements that entail prioritizing such traffic could ensure the low latency levels needed to achieve the high level of data quality necessary for such services to thrive.
Comcast stood by its 2014 statement in support of a rebuttable presumption against “exclusive [paid prioritization] arrangements and arrangements that prioritize a broadband provider’s own affiliated content vis-à-vis unaffiliated content.”
Though Comcast says paid prioritization would benefit telemedicine applications, the existing rules already allow ISPs to provide isolated network capacity for telemedicine, as we’ve previously written. VoIP phone offerings, heart monitors, and energy consumption sensors are also allowed under this exception to the net neutrality rules.
The net neutrality rules also don’t outlaw the use of content delivery networks (CDNs) that optimize delivery of Internet content to the edge of an ISP’s network. Comcast itself debuted a CDN service in 2014 that places video content closer to customers’ homes. But Pai’s plan to eliminate the rules will let ISPs offer higher speeds over the network’s so-called “last mile” that leads directly into consumers’ homes and will offer the fast lanes to any type of online business.
Proponents of net neutrality rules say this will harm companies that can’t afford to pay tolls to Comcast and other ISPs.
“Without these rules, Internet service providers will be able to favor certain websites and e-businesses… over others by putting the ones that can pay in fast lanes and slowing down or even blocking others,” over 200 business and trade organizations wrote in a letter to Pai Monday. “Businesses may have to pay a toll just to reach customers. This would put small and medium-sized businesses at a disadvantage and prevent innovative new ones from even getting off the ground.”