BC Expert: End of Net Neutrality?
ASSOCIATE PROF. DANIEL LYONS
BOSTON COLLEGE LAW SCHOOL
(617) 899-4813 (cell)
Lyons is an assistant professor at Boston College Law School who specializes in the areas of telecommunications and Internet regulation, administrative law, and property. He is a frequent contributor to several blogs focusing on the intersection of law and technology, including TechPolicyDaily.com. Before joining the faculty, he practiced energy, telecommunications, and administrative law in Los Angeles. Professor Lyons has participated in proceedings before both the Federal Communications Commission and various state public utilities commissions.
Net neutrality, the concept that all traffic on the Internet is treated equally, is about to pull into the fast lane if FCC Chairman Tom Wheeler gets his way. Under his proposal, broadband providers would be able to strike deals with content providers for “paid prioritization deals” – essentially preferential treatment allowing for uninterrupted video streaming. The proposal will be voted on this Thursday.
“It’s changing quite a bit but that’s not a surprise,” says Boston College Law School Associate Professor Daniel Lyons, an expert on the Federal Communications Commission. “That’s been in the works since the DC Circuit Court decision came down in January. The court made it clear that if the FCC intends to go through with rules about traffic management over the Internet, it must make room for commercially reasonable agreements that allow for individualized negotiations with regard to prioritization of traffic.”
Called “open internet” rules, the plan would prevent broadband providers from blocking or slowing down access to websites or services, or penalizing those who didn’t pay a fee for faster service. While the FCC plans to scrutinize the paid prioritization deals to make sure they don't disadvantage competitors that don't pay up, there are still concerns of an Internet divided between "haves" and "have-nots.” But Lyons says paid prioritization is a good thing because certain types of content delivery, such as video streaming, telemedicine, or real-time gaming, are more susceptible to congestion along an Internet pipe and should be prioritized over less congestion-sensitive traffic like web pages or email.
“The owner of a company that makes real-time gaming or streaming media service might say, ‘I want to be able to pay the broadband provider in order to get priority in the event of some type of congestion that comes along to make sure that the quality of my service does not deteriorate,’” says Professor Lyons, who has participated in rulemaking proceedings before the FCC. “It’s very similar to the post office. Anybody can walk in and get first class mail but if your package needs to get there faster you can pay a little bit extra in order to get next day air delivery or two day delivery or something like that. The post office is the quintessential common carrier – they allow paid prioritization and nobody seems to have a problem with it. The same flexibility should be permitted to broadband Internet service providers, for the same reason: some traffic needs to get through more quickly than others.
“Are these types of arrangements capable of being abused? Yes, absolutely. But that doesn’t mean that they also aren’t capable of doing good things that are pro-consumer. And so I think the right answer is the answer the chairman seems to endorse which is you allow companies to enter these agreements but subject them to substantial anti-trust scrutiny. The agency is going to let companies make these deals but if any of them show actual harm to consumers, it will step in and undo it. I think that’s the right answer. It’s permission-less innovation in the sense that it allows companies to enter into an innovative new ways of delivering information that might benefit consumers. And then the government brings down the hammer if in fact there’s a problem.”
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