AT&T sees the Title II ruling as very “narrow”
Contrary to most expectations of what the so-called “net neutrality” rules permit Internet service providers to do or not do in terms of prioritizing or blocking content, an AT&T executive said that court intepretations of Title II regulations appear to allow ISPs to slow down or block certain content or traffic types — so long as they are upfront with customers about it.
Hank Hulquist, AT&T’s VP of federal regulatory, proffered that view in a post on the company’s policy blog. The company has strongly opposed net neutrality rules.
“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,” Hulquist 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 cites Judges Sri Srinivasan and David S. Tatel opinion 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,” and then notes that the judges added, “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.”
“I was surprised to learn that the Title II order may prohibit such practices only to the extent that ISPs voluntarily hold themselves out as neutral conduits, and do not clearly disclose plans to filter content and applications based on their commercial interests,” Hulquist wrote. “In other words, at the end of the day, it appears that only market forces and not FCC rules prevent ISPs from doing virtually everything that proponents of the Title II order feared. Which is ironic, to say the least.”
If his interpretation is correct, Hulquist wrote, “For all its baggage, 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 that are purportedly undisciplined by market forces.”
He went on to add, however, that ” this point may be almost entirely academic since most ISPs have never indicated much interest in content-based blocking. But it is nonetheless interesting that the Title II order, as understood by Judges Srinivasan and Tatel, does not prohibit such practices. Before reading the concurrence, I assumed that the FCC’s rules would actually prevent ISPs from engaging in ‘editorial discretion.'”
Hulquist concluded that if Srinivasan and Tatel are correct, then “the Title II order is the equivalent of a seriously underdressed emperor” — and if they aren’t, then that might have implications for the Federal Communications Commission’s new notice of proposed rulemaking on net neutrality.
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