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A Glimmer of Compromise on Net Neutrality as FCC Comment Period Ends


A proposal quietly filed two months ago by AT&T that would allow Internet "fast lanes'' but with consumers in the driver's seat is abruptly receiving a flurry of attention.

The proposal would reestablish the general ban on "paid prioritization,'' the jargon term for fast lanes, unless the consumer authorized greater speed for preferred services. The idea was outlined in a July 17 blog post by Bob Quinn, AT&T's senior vice president for federal regulation and the corporation's chief privacy officer. It was little noticed prior to a Washington Post article published Monday.

Related: The Latest FCC Net Neutrality Rules Should Be Opposed

Quinn, noting that AT&T supported the 2010 Open Internet Order that was largely struck down in January by a federal court, wrote the corporation had filed comments with the Federal Communications Commission supporting a ban "paid prioritization – where an ISP [Internet Service Provider] prioritizes packets over the consumer's last mile broadband Internet access service without being directed to perform that prioritization by the consumer.''

Taken at face value, the AT&T position would remove a key complaint from net neutrality advocates that the current rule proposal allowing "fast lanes'' would allow ISPs to cut lucrative deals with content providers rich enough to afford them, leaving everyone else behind.

At the opposite end of the debate, the Electronic Frontier Foundation has advocated the FCC reclassify ISPs as "common carriers'' subject to regulation as utilities, as the old landline phone company was, but with "forbearance'' to limit the application of unwieldy regulations never intended for the Internet.

"So while we call on the FCC to do the right and sensible thing and reclassify (ISPs as common carriers), we must simultaneously demand that the FCC explicitly reject any telecommunications regulations beyond specific and narrow prohibitions and requirements designed to create a fair and level playing field for innovation and user choice,'' the EFF wrote in a blog post.

The proposed FCC rule that would allow the so-called fast lanes received roughly 1.5 million comments, ranging from profanity-laced tirades against cable companies to legal briefs. The public discussion period ended Monday. An analysis of the comments by the Sunlight Foundation found barely 1 percent support rule proposal. For the most part, the internet service providers (ISPs), including AT&T and its peers Verizon, Time Warner Cable and Comcast, along with aligned industry organizations and Republican lawmakers, support the rule but almost no one else does.

Related: WATCH: Comedian John Oliver Takes On FCC in Witty Net Neutrality Rant

The debate has gradually shifted from a vague concept of "net neutrality'' to a call from edge providers and activists for reclassifying ISPs as utilities subject to much tighter FCC regulation under Title II of the Federal Communications Act. Several Senate Democrats support Title II regulation, as do many "edge providers,'' the regulator's term for businesses that use the Internet to sell goods and services. Many successful companies, such as Etsy, have argued passionately for reclassification, claiming they could not have taken root if unaffordable "fast lanes'' were the rule when they launched.

The ISPs have argued regulating them like the old landline phone company will stymie investment in greater broadband infrastructure, if only because of the uncertainty that will certainly follow such a major regulatory reordering, and actually move ISPs into a regulatory framework that allows paid prioritization.

FCC Chairman Tom Wheeler has said the commission has sufficient authority under the existing regulatory designation to protect net neutrality but, in his response to the letter from Senate Democrats, he wrote " the Commission is also seriously considering moving forward to adopt rules using Title II of the Communications Act as the foundation for our legal authority.''

Net neutrality advocates contend the federal court decision that overturned the FCC's 2010 Open Internet Rule makes it clear the commission's previous rule is justified for regulating ISPs but unenforceable unless ISPs are reclassified as "common carriers'' under Title II.

Wheeler has said the commission will decide the issue by the end of this year.

Related: U.S. Court of Appeals Overturns Net Neutrality

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