Srinivasan-Tatel Provide ISPs with Net Neutrality “Get out of Jail Card”?

by Mike Wendy on July 10, 2017

U.S. Court of Appeals, DC Circuit, Washington, DC.

You may know that earlier in May an en banc panel at the U.S. Court of Appeals for the DC Circuit rejected an appeal challenging the Open Internet / Net Neutrality Order, letting the Order stand for the time being. Interestingly, in that ruling, Judges Srinivasan and Tatel issued an illuminating concurring statement, revealing, in their view, a way in which ISPs could offer paid priority / differentiated services to consumers.

They wrote:

While the net neutrality rule applies to those ISPs that hold themselves out as neutral, indiscriminate conduits to internet content, the converse is also true: the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of “editorial intervention.” (Emphasis added)

Without me getting into the numerous problems with the Open Internet / Net Neutrality Order itself, it appears the Srinivasan-Tatel dicta noted above provides an interesting roadmap to offering communications / partnership services outside of the rule should it somehow, in some form, prevail.

From this, I could see the following ISP offerings:

An “Unabridged” service, allowing any user to connect any (safe) device to access any (lawful) content. There would be no unreasonable throttling, blocking or priority services offered for this “unfiltered” service. In essence, the “unabridged” offering comports with the present Open Internet / Net Neutrality Order. For illustration purposes, I could see this service going for $65 per month.

A “Curated” set of services similar in many respects to the Apple model of integrated hardware, software, and entertainment bundles. After proper notice to the customer, customers could choose ISP / partner offerings which provide hardware and priority services, such as those for the home, energy, transportation, medical, grocery, agriculture, financial, entertainment, and information, among other possibilities; and it would be tightly managed (yes, blocked, throttled and “fast-laned”) by the ISP / partners to maximize the customer experience. This “curated” service would stand outside of the OIO / Net Neutrality rule. Its price – which would be largely subsidized by the ISPs and their partners – could be offered $25 per month.

A “Curated-Plus” service, which would be a hybrid between #’s 1 and 2. After proper notice to the customer, it would provide the partnered bundles noted above, but would also enable a metered, unfiltered Internet experience (e.g., “plus”) when chosen by the customer, allowing access to services and information not available in the “curated” only plan. This plan would sit outside of the Net Neutrality Order. Prices for this service would start at $45 per month, and would increase “x”-$ per gigabyte-accessed via the “plus” part of the offering.

The Srinivasan-Tatel roadmap was not part of the initial appeal, which affirmed the FCC’s power to regulate ISPs as utilities. Their en banc concurrence, though compelling, is not controlling authority either. Moreover, it is highly possible that the current “Restore Internet Freedom” rulemaking will end up mooting or changing it significantly. Additionally, though the Supreme Court has not yet decided to take up the Open Internet / Net Neutrality Order, that remains a possibility, which could also shake the underpinnings of the initial Order.

Regardless, if the Open Internet / Net Neutrality Order framework somehow stays intact through all this, the Srinivasan-Tatel guidance could provide ISPs, their partners and consumers with more flexible options than the hard-core / restrictive aspects of the current rule.

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