Harold Feld is Right

[Commentary] Kudos to Public Knowledge's Harold Feld for sharpening his lawyer pencil and addressing some of the legal issues around the (apparently) fascinating issue of "paid prioritization." In a recent blog post, Harold explained how, under Title II, the FCC might approach various business models that include payment for prioritization.

Harold's basic point was that the FCC might either permit or prohibit particular instances of "paid prioritization" based at least in part on decisions the FCC has made in the past. I agree completely on this point. Contrary to the title of Harold's blog, I don't think anyone at AT&T has said that Title II would "require" the FCC to permit any and all practices that include both payment and prioritization. But, if someone has, then he or she should go back to common carrier school. What I and others have said is that under Title II the FCC could not a priori (for some reason lawyers like Latin) ban all practices that may combine payment and prioritization, since in the past they have allowed some practices that do so. Under Title II, carriers would be free in the first instance to offer such services and concerned parties would be free to challenge them. At which point, the process Harold describes would kick in and the FCC would have to decide whether the service in question is "unreasonable," or "unjustly and unreasonably discriminatory."