By Sen. Patrick Leahy
As the Federal Communications Commission continues its consideration of updated open Internet rules, Senate Judiciary Committee chairman Patrick Leahy (D-VT) urged the nation's largest cable and Internet provider to set the example by pledging that it will not enter into any paid prioritization agreements through which websites could be charged for priority access over the Internet. Preventing the creation of such "fast lanes" is critical to meaningful net neutrality protections.
"Small business owners that rely on the Internet to reach customers, independent content producers who rely on new platforms to gain an audience and start-up ventures of all sizes have loudly and validly expressed concern that paid prioritization online would change the Internet as we know it," Leahy wrote in a letter to David Cohen, executive vice president of Comcast. "Allowing the Internet to become a two-tiered system of 'haves' and 'have-nots,' controlled by a small number of corporate gatekeepers, would destroy everything that has made it one of the greatest innovations in human history."
Leahy in July held a field hearing of the Senate Judiciary Committee at the University of Vermont to examine how the FCC's proposed rules would impact public access to the Internet, entrepreneurs and small businesses in Vermont. Leahy heard from Vermonters about the need for fundamental protections to ensure the Internet is not abused by those who control how we connect to the Internet and reported his findings to the full Senate.
Comcast has a pending bid to purchase Time Warner Cable which, if approved, would result in the merger of the two dominant cable and Internet companies in the market. Comcast has pledged to continue to follow the FCC's Open Internet rules and has publicly stated that it does not intend to enter into paid prioritization agreements, but Leahy raised concern that the consolidation of the nation's leading Internet companies could ultimately lead to higher costs for consumers. Leahy pressed Cohen on the issue at a Judiciary Committee hearing in April, and he chaired hearings in July and September on the need to keep the Internet open to all Americans. He also introduced legislation with Congresswoman Doris Matsui (D-CA) that would ban paid prioritization arrangements.
"As the antitrust regulators continue to evaluate Comcast's proposed transaction with Time Warner Cable and regardless of whether it is approved, I ask Comcast to pledge that it will not engage in paid prioritization," Leahy wrote. "I also ask that Comcast pledge not to engage in any activity that prioritizes affiliated content or services over unaffiliated content or services, helping to ensure that vertical integration does not threaten competition online. Making these pledges will go a long way to ensuring that the Internet as we know it will remain open, vibrant, and competitive."
Leahy's letter appears below.
Dear Mr. Cohen,
Over the past few months, more than 3.7 million Americans filed comments with the Federal Communications Commission (FCC) on its proposed rules to protect an open Internet. The record number of comments reflects the critical importance of this issue to consumers and businesses. I agree with the overwhelming majority of commenters that have called on the FCC to enact meaningful rules that will protect consumers and preserve competition online.
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. These types of arrangements pose a significant threat of dividing the Internet into those who can afford to compete and those who cannot. Small business owners that rely on the Internet to reach customers, independent content producers who rely on new platforms to gain an audience, and start-up ventures of all sizes have loudly and validly expressed concern that paid prioritization would change the Internet as we know it. Allowing the Internet to become a two-tiered system of "haves" and "have-nots," controlled by a small number of corporate gatekeepers, would destroy everything that has made it one of the greatest innovations in human history.
In a May blog post, you wrote that Comcast does not intend to enter into paid prioritization agreements. I welcome that assertion, but I remain gravely concerned that if such agreements are permitted, market incentives may drive Comcast and other Internet Service Providers (ISPs) to change that position in the future. In a world of increasing broadband consolidation, Internet customers and Internet content providers face fewer options than ever to gain access online. A network that discriminates cannot be checked by market forces when customers and content providers have few—if any—viable alternatives to choose from.
If the Internet is to remain an open, accessible platform for the free flow of ideas, we need strong rules of the road in place to guarantee those protections. That is why I have introduced legislation with Congresswoman Doris Matsui that would ban paid prioritization arrangements, and have urged the FCC to enact meaningful net neutrality rules to preserve the Internet we know today. Knowing that one-off cases under our antitrust laws would simply offer an ad-hoc, after-the-fact solution, available only to those with the deep pockets to afford litigation, we need to restore baseline rules of non-discrimination through clear action by the FCC.
We also need meaningful pledges from our nation's broadband providers that they share the American public's commitment to an Internet that remains open and equally accessible to all. As a condition of the Comcast-NBC Universal merger, Comcast is bound to the net neutrality principles embodied in the FCC's Open Internet Order through the end of 2018. Those rules should be viewed as a minimum level of protection to promote competition online, and Comcast's commitment to those principles should extend well beyond the imminent cut-off date of 2018.
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