AT&T’s Masquerade over Paid Discrimination

There have been quite a few punches thrown recently over the concept of “paid prioritization.” Free Press and AT&T have each taken swings over the subject, arguing over the meaning of current standards for network management, and which practices would violate the Net Neutrality framework supported by Free Press and other organizations.

Free Press and others, including the Internet Engineering Task Force and the Open Technology Initiative of New America Foundation, are calling AT&T out for its masquerading and attempts to capture and legitimize the term “paid prioritization” by lumping together harmful discrimination and standard business practices related to quality of service. The chair of IETF, an organization of network designers, operators, vendors and researchers integrally involved in establishing standards for Internet architecture, weighed in, saying “AT&T’s characterization is misleading,” and emphasizing that IETF has never endorsed systems of payment for prioritization, rather, IETF standards are designed to allow network users to signal the priority their traffic needs.

According to OTI, AT&T uses broad language to describe its practices, including statements like “hundreds of customers… purchase paid prioritization today from AT&T.” In doing so, AT&T is effectively talking past the rest of the world, by using the term “paid prioritization” to refer not to third-party payments for discriminatory treatment, but to quality of service activities occurring in business-grade direct Internet access connections pursuant to IETF standards.

Practices that involve end users of the Internet requesting specific priority for some traffic are vastly different from network operators setting priority levels for users against their will, particularly when the operators are giving preference to their own traffic or to the traffic of third party content providers who have paid for special treatment.

Imagine a business with a connection that is shared between business customer communications and employees’ personal work computers. The business may wish to have its customer communications receive priority over employees’ personal Internet usage, such as viewing ESPN.com over lunch or coffee breaks, to minimize any delays for the customer. To implement that priority, the business would attach “DiffServ” flags to its traffic to differentiate higher priority business communications from lower priority personal ones. Under the terms of its contract with AT&T or another business ISP, those priority flags will be maintained.

The practices that are “paid prioritization” in the intended sense are those where an operator is giving preference to its own traffic or third party content providers who have paid for special treatment, and it’s these practices that undermine choice, expression, innovation and competition on the open Internet. We’ve written before about this, and contrary to AT&T’s assertions, we have not been hypocritical in our policy approach.

We do not believe that prioritization can make up for recent reductions in investment into network capacity - including in wireless networks, where we have identified a substantial reduction in capital expenditures as a percentage of revenue. We also have our doubts as to whether even end user prioritization is needed, particularly in residential end user Internet access services which continue to grow in capacity as technology develops.

But we don’t have a vendetta against prioritization. Our fight is over discrimination - network operators choosing, on behalf of their own subscribers, what gets priority and what doesn’t, or what traffic gets through and what doesn‘t. Paid prioritization, allowing a third party to pay for better access to an Internet user’s home connection, is a major violation of the principle of nondiscrimination. Paid prioritization undermines open and unrestricted expression, choice, innovation and competition - the hallmarks of the open Internet. Even network operators trying solely to be helpful, without anti-competitive motive, can and will generate harm if they assign priority themselves, particularly for innovative new products yet to be adopted by a substantial number of Internet users.

AT&T’s hope in this latest round is to capture the frame of “paid prioritization.” AT&T wants to convince the public, through sheer volume and ambiguity of language, that “paid prioritization” is not a bugaboo, but a legitimate practice, regardless of whether the term refers to business connection service level agreements or to network operator-imposed restrictions on Internet user choice and expression. Don’t be fooled: Paid prioritization cannot, and must not, be taken so lightly.

As an aside: We’re giving AT&T the benefit of the doubt here. AT&T was subject to strong conditions against discrimination for years as a result of their merger with BellSouth, as OTI notes. In fact, as Free Press has pointed out before, AT&T invested substantially under these conditions and flourished. We choose not to believe that AT&T has made a complete about-face since the expiration of these conditions, nor that AT&T was violating the conditions all along and just never got caught. We choose to believe that a company flourishing under nondiscrimination conditions does not now need to begin rampant discrimination through paid prioritization in order to survive and grow. But we wish AT&T would be a little bit more up front and honest with its subscribers, the Commission, and the public at large.

People + Policy

= Positive Change for the Public Good

people + policy = Positive Change for the Public Good