Verizon Pinky-Swears It Won’t Sue FCC Over Net Neutrality (If It Doesn’t Reclassify Broadband)

A few weeks after Verizon made it clear that it would sue to block the FCC’s attempt to enact strong net neutrality rules, and only days after FCC Chair Tom Wheeler shrugged that a lawsuit seems inevitable no matter what he does, the telecom titan is now saying it may not go the legal route if the Commission decides against reclassification.

Let’s step back for a second and review how we got here.

If there is one company that can be blamed for the fact that the FCC is even discussing the possibility of taking broadband — currently designated as a lightly regulated information service — and reclassifying it as a necessary piece of telecommunications infrastructure, it’s Verizon.

When the FCC enacted the first neutrality rules in 2010, Big V immediately sought to strike them down, claiming that the agency lacked the statutory authority to regulate broadband services in this way.

And earlier this year, Verizon was ultimately proven right — or at least it convinced a federal appeals court it was right — leaving what remained of the 2010 Open Internet rules ineffective to maintaining a neutral Internet.

Since the court told the FCC that it couldn’t slap these regulations on broadband under its current classification, the Commission was really left with only two options — introduce a weak-kneed neutrality that allows Verizon and other Internet service providers to charge premiums to deep-pocketed content companies, or try to reclassify broadband.

In the end, Wheeler’s proposal went the weak-kneed way, though in such a way as to try to minimize abuses (best of luck with that). However, it did ask the question about — and leave the door open to — possible reclassification, and it’s that mere hint of more regulation that has Verizon and other ISPs up in arms and threatening legal action.

Now, reports Ars Technica, Verizon is telling Wheeler that it won’t sue if he takes reclassification off the table.

In a Nov. 21 e-mail to the FCC Chair, Verizon Exec. VP Randal Milch replies to Wheeler’s statement about the inevitability of litigation by saying that Verizon’s view is now that neutrality rules that prohibit “harmful” paid prioritization — which is exactly what Wheeler has already proposed — would “not be the object of a successful court challenge — by Verizon or anyone else.”

The question that lingers is how one defines “harmful.” The 2010 rules had deemed any sort of paid prioritization as harmful, while Wheeler’s proposal takes a more relaxed view.

Under the draft voted on by the FCC in May, the Commission would assume that all pay-for-priority deals are against the rules “until proven otherwise,” meaning ISPs would be given the opportunity to plead for an exception that would allow a fast lane.

The problem is, Verizon and the other ISPs have really, really clever lawyers whose huge homes are paid for because they can find loopholes in even the best-worded rules.

One such loophole that critics are already concerned about is the notion that ISPs will get around paid-prioritization restrictions by simply making high-priority access available to all content providers, but at a price that they know can only be afforded by the companies they want to sell to.

This would have the effect of enriching ISPs while ensuring that wealthy content providers can shoulder out startups and smaller businesses.

Additionally, while it may be tempting to avoid litigation by taking reclassification off the table, that disregards the reality of the age in which the Internet is no longer about checking news headlines or acting creepy in an AOL chat room.

Every company now relies on the Internet to some degree, just as every business has some reliance on water, electricity, heating, and transportation. Continuing to label broadband and nothing more than an information service is just ignoring its vital importance.

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