Comcast filed comments in support of the FCC’s plan to kill the 2015 net neutrality rules today. And while pretty much everything in them is expected — Comcast thinks the rules are burdensome and hurt investment, yet it says it generally supports the principles of net neutrality — there’s one telling new quirk that stands out in its phrasing: Comcast now says it’s in support of a ban on “anticompetitive paid prioritization,” which is really a way of saying paid prioritization should be allowed.
“The commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public,” Comcast says in its filing. The key qualification is “anticompetitive,” which is a term that could be interpreted in a lot of different ways depending on who’s defining it.
In the past, ISPs have brought up medical uses to explain why paid prioritization could be a good thing, and Comcast does that again here. It suggests that a video chat service designed for people with hearing impairments would benefit from paying extra to deliver “sufficiently reliable quality” HD video so that viewers can see subtle motions in real time.
Comcast doesn’t just see paid fast lanes being useful for medicine, however. It also thinks they might be fair to sell to automakers for use in autonomous vehicles. “Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it,” the filing says.
This makes Comcast’s position pretty confusing. Comcast says it opposes prioritizing one website over another. It even suggests the commission adopt a “strong presumption against” agreements that benefit an ISP’s own content over competitors’ work, but it’s not clear how benefiting one car company or telemedicine company over another is any different.
Back in 2014, during the last net neutrality debate, Comcast was pushing for something similar, asking the FCC to allow “commercially reasonable” paid prioritization. Here, too, its position didn’t really add up. It suggested that “few [paid prioritization] arrangements” would pass the “commercially reasonable” test. But it also said, without providing examples, that “experimentation” should be allowed because ISPs and web companies might figure out an interesting deal.
The important thing to recognize is that, without a new law or the current Title II backing, the FCC can’t outright ban paid fast lanes. It tried in 2010, but Verizon fought back, and a court ruled that an outright ban was illegal unless the commission relied on Title II. With the ISPs now trying to kill Title II regulation, any future rules the FCC puts in place governing what internet providers can do — and it’s not clear that there will be any — would have to allow for paid fast lanes in some form. The only thing left to prohibit paid prioritization schemes would likely be Congress.
On some level, it seems like Comcast recognizes the backlash it would get from making a traditional paid fast lane agreement. But the company seems to be looking for new areas, where people don’t traditionally see net neutrality applying — prioritizing cars and medical devices, instead of websites visited by consumers.
Disclosure: Comcast is an investor in Vox Media, The Verge’s parent company.