Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management

INTRODUCTION The Internet increasingly offers a preferred medium for access to video and other types of high value content that may require Internet Service Providers (“ISPs”) to use special efforts to ensure superior quality of service (“QOS”). ISPs have made substantial investments in infrastructure upgrades to satisfy growing demand for networks capable of delivering bandwidth intensive traffic at higher transmission speeds. Additionally, they work to accommodate consumer expectations of having content access anytime, anywhere, through any medium, via any device, and in any screen presentation format. Early adopters of new video delivery technologies rely on both wireline and wireless alternatives to “legacy” media such as broadcast, cable, and satellite television. Consumers have declining tolerance for “appointment television” that limits access to a specific time, on a particular channel, and in a single presentation format. Already some video content consumers have “cut the cord” and abandoned traditional video media options replacing them with online platforms offering access to live content as well as streaming of stored content. The terms Internet Protocol Television (“IPTV”) and Over-the-Top Television (“OTT”) refer to the ability of content creators and new or existing content distributors to provide consumers with access to video content via broadband links, in lieu of, or in addition to, traditional media. New distribution media have the ability to deliver “mission critical” bits requiring highly reliable conduits for the immediate (“real time”) transmission of video content and their instantaneous display. IPTV and OTT can offer consumers new options for accessing “must see” video content, such as live sporting events. This Article assesses whether and how ISPs can offer QOS enhancements, at premium prices for full motion video, while still complying with the new open Internet rules and regulations established by the Federal Communications Commission (the “FCC” or the “Commission”) in March, 2015. This Article explains that having made the controversial decision to reclassify all forms of Internet access as a telecommunications service, the FCC increases regulatory uncertainty. In particular, the FCC has evidenced skepticism whether ISPs, providing retail first- and last-mile broadband service to residential subscribers, can offer QOS enhancements that serve real consumer wants, without harming competition and the ability of most content to arrive on a timely basis using conventional “best efforts” routing. This Article suggests that the FCC expand its “narrow” waiver criteria to allow retail ISPs to join their upstream counterparts, and provide video delivery enhancements that do not degrade conventional best efforts routing, or prioritize traffic in ways designed to disadvantage competitors