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As consumers expand their use of the Internet and new multimedia and voice services become more commonplace, control over network quality also becomes an issue. In the past, Internet traffic has been delivered on a “best efforts” basis. The quality of service needed for the delivery of the most popular uses, such as email or surfing the Web, is not as dependent on guaranteed quality. However, as Internet use expands to include video, online gaming, and voice service, the need for uninterrupted streams of data becomes important. As the demand for such services continues to expand, broadband network operators are moving to prioritize network traffic to ensure the quality of these services. Network prioritization may benefit consumers by ensuring faster delivery and quality of service and may be necessary to ensure the proper functioning of expanded service options. However, the move on the part of network operators to establish prioritized networks, while embraced by some, has led to a number of policy concerns.
There is concern that the ability of network providers to prioritize traffic may give them too much power over the operation of and access to the Internet. If a multi-tiered Internet develops where content providers pay for different service levels, the potential to limit competition exists, if smaller, less financially secure content providers are unable to afford to pay for a higher level of access. Also, if network providers have control over who is given priority access, the ability to discriminate among who gets such access is also present. If such a scenario were to develop, the potential benefits to consumers of a prioritized network would be lessened by a decrease in consumer choice and/or increased costs, if the fees charged for premium access are passed on to the consumer.
The potential for these abuses, however, is significantly decreased in a marketplace where multiple, competing broadband providers exist. If a broadband network provider blocks access to content or charges unreasonable fees, in a competitive market, content providers and consumers could obtain their access from other network providers. As consumers and content providers migrate to competitors, market share and profits of the offending network provider will decrease leading to corrective action or failure. However, this scenario assumes that every market will have a number of equally competitive broadband options from which to choose, and all competitors will have equal access to, if not identical, at least comparable content.
Despite the FCC’s ability to regulate broadband services under its Title I ancillary authority and the issuing of its broadband principles, some policymakers feel that more specific regulatory guidelines may be necessary to protect the marketplace from potential abuses; a consensus on what these should specifically entail, however, has yet to form. Others feel that existing laws and FCC policies regarding competitive behavior are sufficient to deal with potential anti-competitive behavior and that no action is needed and if enacted at this time, could result in harm.