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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
prioritized connectivity may consist of prioritized provisioning and restoration of wired communications circuits or prioritized communications for wireline or wireless calls. The current priority services programs were established pursuant to Executive Order 12472, issued in 1984, which called for development of priority services programs to facilitate communications among top national leaders, policy makers, military forces, disaster response/public health officials, public utility services, and first responders.
The Commissions rules for the current priority services programs date back to the establishment of the Telecommunications Service Priority TSP System in 1988 and the creation of the Priority Access Service PAS, more commonly referred to as Wireless Priority Service WPS, in 2000. As the Commission explained when it classified wireline broadband internet access service as an information service, for example, the classification of wireline broadband internet access service as an information service, . . .
will not affect the Commissions existing rules implementing the National Security Emergency Preparedness NSEP
Telecommunications Service Priority TSP System. In any case, even assuming arguendo that classification of broadband internet access service as a telecommunications service otherwise might have affected the application of these rulessuch that obligations under those rules newly would have applied as a result of that classificationthat outcome did not actually result from the Title II Order given the forbearance granted there. We recently sought comment on updating and revising our rules governing the priority services programs. The Commission recently proposed to update its rules to expand the scope of the priority services programs to include data, video, and IPbased voice services. As the variety and volume of dedicated services for prioritization of public safety traffic demonstrate, prioritization of public safety communications is critically important to protecting life and property, and nothing in our rules currently prevents service providers from prioritizing public safety communications. Even the Title II Order acknowledged that public safety could benefit from traffic prioritization without running afoul of the bright-line rules in effect at the time, noting that traffic prioritization, including practices that serve a public safety purpose, may be acceptable under our rules as reasonable network
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management. Moreover, the Commissions proposals, should they be adopted, could provide an additional avenue to ensure that public safety communications are appropriately prioritized. As Free State Foundation explains, sharing commercial cores and network traffic on an undifferentiated basis with non-public safety users can pose serious risk to the integrity of public safety communications in times of emergency and other peak congestion situations.
When networks are congested or at risk of becoming so, providing network preferences for public safety-related data traffic can prevent disruptions of calls and other timely information being sent to and from first responders and other responsible agencies.
45. The Commission explained in the Restoring Internet Freedom Order that we expect that eliminating the ban on paid prioritization will help spur innovation and experimentation, encourage network investment, and better allocate the costs of infrastructure, likely benefiting consumers and competition. We see no basis for departing from this reasoning in the public safety context. Concerns expressed by commenters regarding potential adverse effects to public safety as a result of paid prioritization of nonpublic safety communications appear to be purely hypothetical at this point.
Indeed, even as the country faces an unprecedented crisis, the harms predicted by such commenters have not materialized. We note that paid prioritization arrangements are ubiquitous throughout our economy. As Free State Foundation explains, both market participants and economists have recognized that such arrangements can benefit customers who choose to pay more for enhanced services while making other customers no worse off. In the broadband communications context, paid priority arrangements between broadband ISPs and edge providers can benefit consumers by offering them novel services supported by Quality-ofService guarantees. Edge service providers, including new entrants, potentially can improve their competitiveness by obtaining fast and extra-reliable broadband connections.
Prioritized access may be necessary for some future internet-based innovative services to function and attract customers. And public safety agencies already stand to benefit from these proinnovation and pro-investment effects of paid prioritization arrangements and to thereby better fulfill their duties to the public. Moreover, ISPs have made clear, enforceable written commitments
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to their customers not to engage in paid prioritization. We also observe that our theories in the Restoring Internet Freedom Order for when paid prioritization might be used contemplated fairly narrow scenarios that are unlikely to be the kind of pervasive practices feared in the Title II
Order, and the record here does not undercut that assessment. In particular, we rejected assertions that allowing paid prioritization would lead ISPs to create artificial scarcity on their networks by neglecting or downgrading non-paid traffic or public safety communications, creating a widespread need for, and purchase of, paid prioritization arrangements. Instead, we anticipated paid prioritization being used to address innovative, but ultimately targeted, scenarios. In addition, a number of ISPs question the likelihood and prevalence of paid prioritization arrangements actually occurring in practice. Given those considerations, neither scarcity of network resources nor instances of paid prioritization are likely to be anywhere as pervasive as feared by proponents of the Title II Order, particularly to the point of adversely impacting public safety communications. Further, as AT&T points out, the Title II Order did not ban all prioritization. That Order expressly permitted direct interconnection between ISPs and content delivery networks, which act as agents for paying content providers. The Title II Order also made clear that certain categories of service, such as enterprise services and those services considered non-BIAS services, were not subject to the Orders restrictions.
Finally, under the Title II Order, the Commission was authorized to grant waivers of the paid priority ban where the petitioner could demonstrate that the practice would provide some significant public interest benefit and would not harm the open nature of the internet. We thus conclude that the scenarios of potential concern for public safety communications are much narrower than commenters fear. As a result, such concerns do not alter our decision to retain the regulatory framework of the Restoring Internet Freedom Order.
46. We are unpersuaded by assertions that permitting paid prioritization practices that were impermissible under the Title II Order will necessarily lead to degradation of public safety communications. Such commenters mistakenly believe that QoS is a zerosum game, one in which it is impossible to tailor the management of network resources to the needs of specific
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