Title II: Regulated Dumb Pipe is the Polcy: Consumer Welfare is the Issue

Since the greatest service provider fear is that of being reduced to a "dumb pipe" provider of commodity access service, it is drop dead simple to see why most facilities-based providers will oppose the Federal Communications Commission attempt to regulate broadband access as a common carrier access service with no permissible traffic shaping.

Application providers are right to fear unfair business advantage, which would be the case if ISPs decided to block lawful applications or apply differentiated quality measures to their own Internet traffic, while denying such prioritization and quality measures to business partners or competing applications.

Any number of issues present themselves, ranging from the legal (whether the FCC has authority to proceed as it intends) to the likely impact on investment in new and upgraded access facilities (less investment, not more) to impact on innovation.

Some would say the FCC is attempting to regulate "ex ante," before a problem exists, rather than tackling any issues as they arise. The factual record suggests only two examples of blocking, sufficiently chastening the entire industry into agreeing that indeed, all lawful applications must be allowed.

The big problem is how networks can be managed under conditions of congestion so as to preserve quality of experience, and there the difference between traffic shaping and "blocking" is technically quite difficult to separate. All voice networks, for example, use blocking techniques at times of peak congestion to preserve service quality. Data networks have many more options.

Some types of lower-priority traffic might reasonably be slowed down to allow higher-priority traffic types to get preferential treatment, especially video and voice traffic that are highly suscepitble to delay.

Such measures also are crucial for new services of the sort businesses routinely enjoy, where users can buy features allowing them to set their own priorities for some types of applications. In a regime where absolutely no prioritization is allowed, it would not be legal for an ISP to create and sell a service that provides higher continuity for tele-medicine, video or voice services, for example.

"Dumbing down" access networks by prohibiting any packet prioritization automatically prevents creation of quality-assured services, even if end users want them.

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