CDT Comments in the Matter of Broadband Industry Practices

CDT strongly believes that the Internet’s extraordinary success in facilitating independent innovation and speech is directly linked to the fact that any Internet user can provide content and
services to any other willing Internet user, without getting permission from any “gatekeeper.”  There is currently an active debate about whether and to what extent there is a risk that network
operators could engage in behaviors that would undermine this characteristic openness. 

Current practices in the marketplace, however, may provide limited evidence one way or another as to the extent of this risk.  The present legal framework is still only recently settled,
and merger conditions and the political environment serve as significant but potentially temporary constraints on behavior.  Meanwhile, the market for broadband is concentrated; there
is evidence that network operators can sometimes be tempted to seek to exert more control over their users’ activities than the Internet has typically afforded; and unraveling the effects of
discriminatory deals on a purely after-the-fact basis could prove extremely difficult. 

CDT believes it may be useful, therefore, to consider a range of possible behaviors and attempt to determine whether there are some that seem worth focusing on as likely sources of concern.  The Appendix to these Comments sets forth CDT’s effort to outline possible categories of behavior without expressing any judgments about them.

Taking the next step and actually evaluating these practices leads CDT to a number of conclusions.  Among possible packet management practices:

• Blocking or prioritizing selected traffic in accordance with express requests by subscribers seems unobjectionable.
• Blocking security threats, spam, or illegal content seems unobjectionable.
• Blocking specific applications or services, or blocking entire types of applications, would pose significant concerns.
• Affirmatively degrading selected traffic – to effectively provide less than “best efforts” delivery – would pose significant concerns, unless based on a generally applicable rule about bandwidth usage limits.
• Prioritizing traffic from senders that are affiliated or have exclusive deals with the ISP would pose significant concerns.
• Several other packet management practices would raise at least some concerns, but may present debatable scenarios. 

Among possible pricing practices, meanwhile:

• Pricing plans tied to the network resources made available or used by a subscriber (whether measured in maximum transmission speed or actual throughput of bits) seementirely unobjectionable.
• Varying broadband Internet charges based on the particular online content, services, or applications a subscriber accesses over that connection raises more difficult questions andcould present some risks.

CDT believes there is a strong argument for a policy framework that addresses those practices that can be identified as likely harmful.  The task of developing such a policy framework lies with Congress.  The Commission could play a useful role, however, by:

• continuing to monitor the broadband marketplace – both for the types of practices identified as potentially harmful, and for any evidence of underinvestment in general purpose Internet capacity;
• considering whether there are steps it could take to promote greater transparency of any ISP policies favoring or disfavoring selected broadband traffic; and
• adding a new principle to its broadband Policy Statement relating to discrimination with respect to speed, service quality, or price.