Everyone in DC’s talking about reclassifying broadband as a public utility under Title II. We keep pointing out that this wouldn’t actually do what advocates of Title II want: allow the FCC to ban prioritization (because Title II merely requires that prioritization be “just and reasonable”). Fred Campbell notes that Title II also wouldn’t help Netflix get free interconnection. What Netlix calls “Strong Net Neutrality” has nothing to do with Net neutrality. Someone’s got to pay for Netflix’s streaming infrastructure, and Netflix is trying to pass that cost on (through broadband companies) to people who don’t even use Netflix (in higher broadband bills). Contrary to what Netflix claims, it (like every other large content company) has always had to pay for interconnection, as our own Geoff Manne notes.
Even if the FCC were to reclassify broadband Internet access as a Title II service while leaving Netflix unregulated, the FCC would lack legal authority to require Internet service providers to interconnect with Netflix at no charge….
Netflix’s cynical decision to leverage the net neutrality debate in its interconnection negotiations might be considered shrewd in the court of public opinion, but it won’t avail Netflix in a court of law. No matter how many times Netflix incants “net neutrality”, the communications laws won’t allow Netflix to turn net neutrality into free interconnection rights any more than the laws of nature allow an alchemist to turn lead into gold.
Once again, Title II is a distraction from what Congress should really be focused on: enabling broadband deployment while ensuring that appropriate legal authority existed to prevent real harms to consumers. Netflix having to pay for its own infrastructure just isn’t one of those problems.