Casual observers of the endless net neutrality debate might still be wondering: what was the problem with the Internet that needed to be solved? Why did the FCC impose Title II, 1930s-era monopoly regulations on the biggest deregulatory success story of our time?

We can’t blame them for drawing a blank. As FCC Commissioner Ajit Pai argued in a recent Congressional hearing on the newly adopted net neutrality rules, Title II is a “solution that won’t work to a problem that doesn’t exist.”

This basic reality only proved to be a speedbump for Title II proponents. Where no problem existed, they were happy to invent a boogeyman: paid prioritization. Americans were inundated with doomsday scenarios like “garage startups will have to pay ransoms to Internet service providers (ISPs)” and “ISPs will discriminate against their competitors’ content” and “those who can’t afford to pay are going to be put in a slow lane.”

Of course, none of this was actually happening, and ISPs had no intention of doing any of these things. Nonetheless, Title II advocates, such as Free Press and Public Knowledge used these scenarios to ram through a blanket ban on paid prioritization. They argued that the threat of paid prioritization was imminent, pointing to a quote from Verizon attorney Helgi Walker in a 2010 court battle over net neutrality regulations: “but for these rules we would be exploring these commercial arrangements[.]”

Of course, the quote was taken grossly out of context to misconstrue the meaning:

Well, as I was saying to Judge Silberman, what the Agency has done here is shut down and prevent the development of a two-sided market with respect to Internet services. There is evidence in the record that edge providers are contracting with broadband providers where actually they demand payment, ESPN has a website that is so popular that ESPN demands and receives payments from broadband providers in order to allow those subscribers to access the ESPN content. So, the markets they are certainly in that regard, and I’m authorized to state by my client today that but for these rules we would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be available on the Internet.

Verizon wasn’t talking about charging edge providers for disseminating their content. Conversely, Verizon was saying it would be willing to pay edge providers for access to content that its users value highly, such as ESPN. Deals between ISPs and content providers like ESPN could be of tremendous benefits to consumers, as access to such content, perhaps in exchange for guaranteed better-than-best-efforts treatment, makes their existing broadband connection much more valuable to them. Imagine being able to access a high-definition live stream of any sporting event with a simple click, and getting access to a feed that is as seamless and lossless as the typical cable TV connection!

That’s the dream of many cord-cutters and cord-nevers that cling to their broadband connections and are holding out on cable TV packages, perhaps waiting for a better alternative to come to market, and paid priority deals between ISPs and edge providers could be just the service they’re waiting for. Such deals could satisfy consumers’ changing preferences for content consumption, and allow ISPs to differentiate and experiment with new services. Far from a boogeyman, paid prioritization can be pro-consumer, which is why an outright ban under Title II is so problematic.

Because the overall effects are still unknown, FCC Commissioners Pai and Rosenworcel both called for studies before the agency jumped to such a rash conclusion about potentially pro-consumer arrangements and other unsettled issues in the net neutrality debate. The FCC’s arbitrary and capricious reaction to a hypothetical problem may deal the agency a loss in court on net neutrality for the third time.

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