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Verizon argues throttling video is allowed under net neutrality rules

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Verizon stock new logo 2017 Photo: Chris Welch / The Verge

Last week, Verizon was caught and subsequently admitted to throttling all video traffic on its network. And today, the company is finally addressing the potential net neutrality issue.

In a statement to Broadcasting & Cable, Verizon said that its actions represented “reasonable network management,” which is an exception carved out under the 2015 net neutrality rules. "Video optimization is a non-discriminatory network management practice designed to ensure a high quality customer experience for all customers accessing the shared resources of our wireless network,” a spokesperson said.

It’s pretty expected that Verizon would argue this. It said last week that its video throttling was a matter of “network testing” that would be “completed shortly,” and speeds since appear to have returned to normal.

Here’s the actual text of the Open Internet Order that applies here: “A person engaged in the provision of broadband internet access service ... shall not impair or degrade lawful internet traffic on the basis of internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.”

The trouble is, the order is a little vague on what constitutes “reasonable network management,” since the commission assumed it might take many different forms. But it has a handful of guidelines of what might and might not violate the exception. One important limitation: the practice must be “primarily motivated by a technical network management justification rather than other business justifications.”

If a management practice passes that test, then it moves onto on other qualifications. The order also advises that network management practices that “alleviate congestion without regard to the source, destination, content, application, or service are also more likely to be considered reasonable.”

Verizon really walks the line on this one. On one hand, its throttling did discriminate between content, since it was designed to apply only to video content. But on the other hand, it didn’t discriminate within that content. According to Verizon, all video content was being throttled equally.

So while there certainly is the potential for a net neutrality violation here, it’s hard to say with absolute certainty. Ultimately, it’s up to the FCC to decide what does and doesn’t count as reasonable network management. And given that the current FCC leadership is halfway through proceedings to kill the Open Internet Order altogether, there’s pretty much no chance that Verizon will get in trouble for this.