Pay-for-Play Is a Sticking Point in Congress

Lawmakers are arguing about net neutrality again. In an effort to craft legislation that would protect net neutrality from the whims of the ruling party within the FCC, members of Congress are debating which principles for governing the Internet should actually be enshrined in law.

Unsurprisingly, the whims of each political party mean that debate is producing little consensus.

In a hearing in the House of Representatives yesterday, Democrats and Republicans faced off over the issue of paid prioritization. This is the idea that customers should be able to pay an Internet service provider to prioritize their traffic over someone else's, and it's long been a bugaboo in net neutrality deliberations. According to The Hill, Democrats during the hearing called paid prioritization -- or the concept of Internet fast lanes -- a net neutrality loophole. While Republicans argued that prioritization is a way of optimizing network management and ensuring that applications run smoothly.

Industry representatives have historically walked a zig-zag line where paid prioritization is concerned. AT&T Inc. (NYSE: T) has said it doesn't believe companies should be able to block or throttle content "in a discriminatory manner," but it won't make the same statement with regard to traffic prioritization. Comcast Corp. (Nasdaq: CMCSA, CMCSK) has said it has no plans to implement paid prioritization but has steered clear of making a definitive statement that would prevent such action in the future. (See Where Does Comcast Really Stand on Paid Prioritization?)

The major argument that proponents of paid prioritization offer is the assertion that traffic prioritization is necessary for services like health care delivery and autonomous vehicle management where timing may be a life-or-death issue. Many industry observers have also pointed out that 5G promises to introduce network slicing to the masses, a technique which will allow operators to provision network access according to the specific needs of different application types. That could fall under the category paid prioritization, although no one has worked the details out yet. (See How 5G Could Digitally Divide in a Post Net Neutrality World.)

What most people tend to forget, however, is that the net neutrality rules passed by the Federal Communications Commission (FCC) in 2015 differentiate between Broadband Internet Access Services (BIAS services) and non-BIAS services. The FCC said that net neutrality provisions should apply to BIAS services, i.e. services offering consumer Internet access, but not to non-BIAS services like dedicated networking for businesses, or managed voice-over-IP delivery. In theory, such a distinction could provide for network optimization without allowing the Internet to devolve into a pay-for-play environment.

As far as Congress is concerned, digging into BIAS versus non-BIAS services may be an effort that representatives either don't have the time or willingness to pursue. The Hill, for example, says Democrats appear happy to let the net neutrality debate play out in the courts. That approach may or may not work out to their advantage, but it certainly gives everyone in the House a free pass to avoid the difficult details of net neutrality legislation.

— Mari Silbey, Senior Editor, Light Reading

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