10
avoiding the need to interconnect with the backbone, 2015
Open Internet Order, 30 FCC Rcd. at 5610 ¶ 30, and some
broadband providers, such as Comcast and AT&T, have
begun developing their own backbone networks, id. at 5688
¶ 198.
Proponents of internet openness “worry about the
relationship between broadband providers and edge
providers.” Verizon, 740 F.3d at 629. “They fear that
broadband providers might prevent their end-user subscribers
from accessing certain edge providers altogether, or might
degrade the quality of their end-user subscribers’ access to
certain edge providers, either as a means of favoring their
own competing content or services or to enable them to
collect fees from certain edge providers.” Id. Thus, for
example, “a broadband provider like Comcast might limit its
end-user subscribers’ ability to access the New York Times
website if it wanted to spike traffic to its own news website,
or it might degrade the quality of the connection to a search
website like Bing if a competitor like Google paid for
prioritized access.” Id.
Understanding the issues raised by the Commission’s
current attempt to achieve internet openness requires
familiarity with its past efforts to do so, as well as with the
history of broadband regulation more generally.
A.
Much of the structure of the current regulatory scheme
derives from rules the Commission established in its 1980
Computer II Order. The Computer II rules distinguished
between “basic services” and “enhanced services.” Basic
services, such as telephone service, offered “pure
transmission capability over a communications path that is
virtually transparent in terms of its interaction with customer
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