AT&T supports a “fast lane” ban as long as it contains a giant loophole

The common wisdom is that the Federal Communications Commission can't issue stronger open Internet rules unless it re-classifies broadband as a telecommunications service, which would open ISPs up to utility-style, common carrier regulations under Title II of the Communications Act.

AT&T has vehemently argued against Internet service being treated like a utility. And now, despite that court ruling, AT&T claims that the FCC can ban fast lanes or "paid prioritization" without reclassifying broadband. However, AT&T's argument includes a big loophole that would actually allow extensive paid prioritization.

AT&T claims the FCC could implement a fast lane ban and still comply with the court ruling "by concluding that paid prioritization is a per se commercially unreasonable practice under the theory that it threatens the open Internet."