No, the FCC Did Not Allow “Fast Lanes” on the Internet, Yet

This week, the Federal Communication Commission (FCC) held an Open Meeting to propose new rules regarding regulation of Internet service providers (ISPs), such as Verizon and Comcast. The proposed rules would entail one of two paths: permission for implementing commercially reasonable arrangements such as paid prioritization—sometimes called “fast lanes”—or enable the banning of paid prioritization for ISPs. If we must choose between a full prohibition and being granted permission to have services charged more liberally, it would be best to have “fast lanes” permitted by the FCC.

To clarify, the so-called “fast lane” proposal could allow ISPs to provide faster and stronger connections to content providers in exchange for higher fees. Opponent fear that this would let ISPs purposely provide certain companies slower connections, or cut off access altogether to competing companies or start-ups with less resources.

Before addressing the question of fast lanes, it’s important to understand that no final rule has issued. As FCC Commissioner Mignon L. Clyburn has stated, one of the big questions posed from people concerned about net neutrality is, “‘has it passed?’ No, it has not. Some press accounts have reported that the Chairman’s initial proposal is what we are voting on, and have conflated proposed rules with, final rules. Neither is accurate.”

In yesterday’s meeting, the Commission voted to open the proposed rule up to public comment before making a final decision on the rule. The FCC has created an email address for handling public comment on this matter. The public comment period will be open for 120 days following the hearing, and at the end of this period the FCC will be given a chance to vote on these proposed rules.

The proposal followed the January 2014 court decision in Verizon v. FCC, in which the D.C. Circuit vacated the FCC’s nondiscrimination and no-blocking rules. The no-blocking rule would prevent ISPs from blocking legal content from consumers. The option to ban paid prioritization would also revive the no-blocking rule. This time around, however, the FCC has sought to distinguish the no-blocking rule from the nondiscrimination rule, which is essential if the former rule is to survive judicial scrutiny.

The Verizon court also upheld provisions mandating disclosure by ISPs regarding their network management decisions. This allows for customers to remain aware of how their ISPs are treating competition so that they are able to make informed decisions about what ISP to subscribe to.

It would be best for consumers and producers of Internet services if the FCC does not block paid prioritization. By expanding the pool of potential customers to include content companies, paid prioritization could allow ISPs to earn more revenue, which they could use to continue investing in new infrastructure. Broadband subscribers also stand to benefit from agreements whereby content companies pay ISPs directly. Innovation and investment will only be held back if the FCC bans “fast lanes. Price discrimination should be permitted by the FCC, or else we will all suffer.