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prioritization obviously regulates rates—the rates paid by
edge providers; it insists that the incremental rate for assured
or enhanced quality of service must be zero. Although I
cannot claim that the parties’ exposition of the technology is
clear to me, it seems evident that the factors affecting quality
of delivery to a consumer include not only whatever service
characteristics go into promised (and delivered) speed at the
consumer end but also circumstances along the route. “Paid
peering” (discussed below) would be unintelligible if it were
otherwise.
With these background points in mind, I turn to the
Commission’s treatments of “unjust” and “unreasonable”
under §§ 201 and 202. Its principal discussions of the concept
have occurred in the context of § 202(a), which bars “any
unjust or unreasonable discrimination in charges,
practices. . . ,” etc. Section § 201(b), relied on by the
Commission here, is very similar but does not include the
word “discrimination.” § 201(b) (“All charges, practices,
classifications, and regulations for and in connection with
such communication service, shall be just and reasonable, and
any such charge, practice, classification, or regulation that is
unjust or unreasonable is declared to be unlawful . . . .”) The
Order’s language explaining its view of § 201(b) doesn’t
mention this difference, so evidently the Commission’s
interpretation doesn’t rely on it.
The Commission’s decisions under § 202 have plainly
recognized the permissibility of reasonable rate differences.
In In re Dev. of Operational, Tech. & Spectrum Requirements
for Meeting Fed., State & Local Pub. Safety Agency Commc'n
Requirements Through the Year 2010, 15 F.C.C. Rcd. 16720
(2000), for example, the Commission issued an order
declaring that premium charges for prioritized emergency
mobile services were not unjust and unreasonable. In full
accord with the usual understanding of rate regulation, the
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