FCC Looks for Balance in Net Neutrality Debate

Spiwak said that if Comcast was trying to block access to the downstream market, that would be a legitimate anti-competitive issue. But if congestion was the issue and the company had to make a decision based on one user or all the others, that’s not anti-competitive.

The bottom line, Spiwak said, is that every time the Commission has looked at these vertical issues, it has always taken a case-by-case approach. “That’s where we need to go rather than these bright line rules and automatic presumptions of discrimination.”

The Phoenix Center released a study this week called “The Welfare Impacts of Broadband Network Management: Can Broadband Service Providers Be Trusted?” In it, Spiwak, along with George Ford and Thomas Koutsky, concluded that: “If it is shown that a congestion externality is present and that a traffic management tool directly remedies that externality, it is appropriate to presume that this type of traffic management by a private firm is legitimate and welfare enhancing.”

The center defines a congestion externality as the use of applications by some users that reduce the value of broadband service for other users on the broadband network, without compensation, by causing delays or other service quality problems. The study found that this type of traffic management has been deemed appropriate by society. Furthermore, it is socially desirable to charge a congestion premium when congesting-causing applications are used on a broadband network.