(Bloomberg) — There are about 70,000 organizations and websites taking part in today’s “day of action” supporting net neutrality — the concept that internet providers can’t give preferential treatment to certain types of traffic traveling over their networks. None are more notable than Comcast and AT&T. This week both internet providers — who have spent over a decade lobbying and filing lawsuits to oppose such rules — published blog posts saying they support net neutrality. So, everything’s settled then? Not quite.
To a normal person, Comcast and AT&T’s stance seems to jibe with the opinions of the consumer groups and tech companies that make up the core of the net neutrality lobby. “We support permanent, strong, legally enforceable net neutrality rules,” wrote David Cohen, a senior executive vice president at Comcast. “The debate around an open internet has been going on for nearly 15 years. In the end, the issue is never really about what the rules should be or whether we should have an open internet,” wrote Bob Quinn, AT&T’s top Washington official. They argue the basic dispute is about the legal authority that the FCC uses to enforce the rules.
But the fight over net neutrality isn’t being waged by normal people, it’s being waged by lawyers deep in the weeds of regulatory law. To their eyes, there are big differences between the definition of net neutrality used by Comcast and AT&T, and the one used by most other participants in the day of action.
“AT&T pretending to care about an open internet is like Dracula suddenly professing a heartfelt concern for the plight of blood donors, or Jeffery Dahmer saying he just popped by to lend a helpful hand in the kitchen,” wrote Karl Bode on the website Techdirt, which has been advocating for strong rules for years.
A key issue is paid prioritization. This is the idea that a website or online service would pay an internet provider for speedier access on its network — like if AT&T told Netflix it’d give it a special fast-lane on its network for a monthly fee. The FCC banned paid prioritization outright in its 2015 rules. Many advocates see this prohibition as one of their biggest victories. After all, if deep-pocketed companies can pay for better service, then companies that can’t pay — startups and small businesses — will get stuck with worse service.
Current FCC Chairman Ajit Pai has been skeptical that paid prioritization is a real problem. In its notice of proposed rulemaking, his FCC writes that the Internet functioned without such a ban until 2015, and that “no such rule was needed since several large Internet service providers made it clear that that they did not engage in paid prioritization and had no plans to do so.” He asks for input about whether getting rid of the ban is a good idea.
AT&T and Comcast say they don’t dispute the content of open internet rules, so it seems like everyone is on the same page here. The truth is a bit more complicated. When discussing the issue, both companies qualify the term by saying they oppose “anti-competitive paid prioritization.” Sena Fitzmaurice, a spokeswoman for Comcast, pointed to comments the company submitted in 2014 saying that it had no plans to develop paid prioritization, and that it opposed “paid prioritization that threatens internet openness.” She declined to say whether Comcast thought there were any benign types of paid prioritization.
In a press briefing yesterday, Quinn said AT&T was “willing to have a discussion” about restrictions on the practice. “I think to make a hard and fast rule around that is probably not a good idea at this point in time,” he said, citing autonomous vehicles and other cases where certain types of internet traffic should be given priority. “We have supported a case-by-case approach. If there’s anti-competitive or some kind of consumer harm, we’ve supported that that shouldn’t be allowed,” he added.
Gigi Sohn, a longtime net neutrality advocate who worked at the FCC and helped write the current rules, argued that both AT&T and Comcast were hedging their bets by throwing in the qualifying language. She says that well over a decade into the debate, the lawyers arguing about internet regulations know the basic vocabulary. “Our ban was a ban. There were no wiggle words like ‘anti-competitive,’” she said. “If they’ve got a definition for ‘anti-competitive,’ let’s hear it.”
There’s also disagreement over the idea that a company can exempt certain types of services from counting against limited data plans, a practice known as zero rating. AT&T argues that zero rating is good for customers. It has offered its wireless customers access to DirecTV and a select group of other services without counting those against their data plan limits. Last March, the net neutrality advocacy group Public Knowledge filed a complaint against Comcast for saying that it wouldn’t count the time they spent watching its own “Stream TV” digital video service when calculating how much data they were using. Comcast said that the complaint was invalid because Stream TV was a specialized service that was exempted from Open Internet restrictions.
Comcast and AT&T could argue with net neutrality advocates about whose stance on these issues should win the day. They could make these arguments to the FCC or to lawmakers if Congress decides to pursue a new law regarding internet regulations. They could try to convince the general public. But they shouldn’t be pretending there’s no argument going on.