While its counterparts (we can’t call them competition, since that doesn’t exist) at other cable and Internet service providers have been drooling over proposed “net neutrality” rules that would allow ISPs to charge content companies for “fast lane” access to end-users, Comcast has consistently maintained that it is the only ISP to hold to the since-gutted 2010 version of neutrality (without mentioning that it’s legally obliged to follow those rules for a few more years). Now the Chairman of the Senate Judiciary Committee is asking Comcast to stick to those rules even after it no longer has to.

This morning, Sen. Patrick Leahy of Vermont sent a letter [PDF] to Comcast Exec. Vice President and merger frontman David Cohen, expressing his concern that Comcast may be tempted to start charging tolls to websites and online services who need a consistently high-quality connection to consumers.

“One area of particular concern to me, as to millions of others, is the risk of paid prioritization agreements through which websites could be charged for priority access over the Internet,” writes Leahy. “These types of arrangements pose a significant threat of dividing the Internet into those who can afford to compete and those who cannot.”

On the one side, argues Leahy, are the “have-nots,” the operators of small businesses and startups that won’t be able to afford the toll charged by ISPs and who stand no chance against the “haves,” those established and deep-pocketed companies that can absorb the extra cost of having to pay extra for the highest tier of access to consumers.

Leahy contends that having an Internet “controlled by a small number of corporate gatekeepers, would destroy everything that has made it one of the greatest innovations in human history.”

Back in May, Cohen wrote that “Comcast has never offered paid prioritization, we are not offering it today, and we’re not considering entering into any paid prioritization creating fast lane deals with content owners.”

Leahy cites that statement buy says he is “gravely concerned” the Comcast may ultimately be tempted to change its mind on the topic if the rest of the market starts hitting up content companies for fast lane access.

“In a world of increasing broadband consolidation, Internet customers and Internet content providers face fewer options than ever to gain access online,” writes Leahy. “A network that discriminates cannot be checked by market forces when customers and content providers have few—if any—viable alternatives to choose from.”

Even though the 2010 Open Internet rules were gutted by a federal court earlier this year, Comcast remains bound to those guidelines — which expressly forbid paid-prioritization — through 2018. It agreed to this condition as part of the regulatory approval of its 2010 acquisition of NBC Universal.

“Those rules should be viewed as a minimum level of protection to promote competition online,” says Leahy, “and Comcast’s commitment to those principles should extend well beyond the imminent cut-off date of 2018.”

If the Justice Dept. and FCC do eventually grant approval to the pending Comcast acquisition of Time Warner Cable, many insiders expect that an extension of Comcast’s neutrality pledge will be part of the deal.

In his letter, the Senator asks for Comcast to restate its pledge to not seek fast lane deals, regardless of the fate of the TWC merger.

“I also ask that Comcast pledge not to engage in any activity that prioritizes affiliated content or services over unaffiliated content or services,” writes Leahy, referring to concerns that Comcast may attempt to give NBC Universal or Xfinity on-demand content a higher priority than content from online video providers, “helping to ensure that vertical integration does not threaten competition online.”

A rep for Comcast tells Consumerist the company is currently reviewing the Leahy letter and points to Cohen’s repeated previous assertions that the company does not make paid-prioritization deals.

However, one could argue that Comcast and other ISPs are drawing a questionable distinction between paid-prioritization deals and “paid-peering” deals like the one that Comcast made with Netflix earlier this year.

In the Netflix situation, Comcast and several other ISPs had begun to let Netflix traffic bottleneck at peering points — the points where Netflix’s bandwidth providers connect to ISPs’ networks before being carried the “last mile” to the end-user.

Previously, it had been standard practice for ISPs to open up more connections when congestion occurred; much like a supermarket or fast food chain will temporarily open up a new cash register when the store gets crowded.

But the ISPs each realized they could either compel Netflix to ante up for a more direct connection to their networks or, at the very least, make Netflix less appealing to subscribers who weren’t able to access high-quality video.

Netflix ultimately cried uncle and began paying Comcast (and Verizon, and AT&T, and Time Warner Cable) for more direct access to customers, which set off alarm bells among supporters of true net neutrality.

However, neither the 2010 neutrality rules nor the rules proposed by FCC Chair Tom Wheeler earlier this year prohibit (or even deal with) paid-peering arrangements, as the Open Internet rules are intended to deal with only the consumer-facing side of the Web.

Since peering deals involve issues of Internet infrastructure and interconnectivity, they are to be dealt with separately, if at all. The good news, for those who believe that peering deals cross the line and create de facto tollgates for content providers, is that FCC Chair Wheeler took up the issue back in June, asking ISPs to provide information about these controversial arrangements.

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