26
words of Shel Silverstein’s children’s song, “Some kind of
help is the kind of help we all can do without.”
For our purposes, of course, the question is whether, as
the Alamo-Berninger brief argues, the section of the statute
invoked by the Commission under Title II, namely § 201(b),
authorizes the ban, or, more precisely, whether the
Commission has offered any reasonable interpretation of
§ 201(b) that would encompass the ban.
A number of points by way of background: First, nothing
in the Order suggests that the paid prioritization ban allows
any exception for rate distinctions based on differing costs of
transmission, time-sensitivity of the material transmitted, or
congestion levels at the time of transmission, all variables
historically understood to justify distinctions in rates. Alfred
E. Kahn, The Economics of Regulation (1988), at 63 (different
costs), 63-64 (different elasticities of demand, as would be
reflected in time sensitivity), 88-94 (congestion). The AlamoBerninger brief cites the FCC chairman’s observation in
Congress, “There is nothing in Title II that prohibits paid
prioritization,” Hearing before the Subcommittee on
Communications and Technology of the United States House
of Representatives Committee on Energy and Commerce, and
Technology of the United States House Commission,” Video
at
44:56
(May
20,
2014),
available
at
http://go.usa.gov/3aUmY, but that need not detain us. More
important, general principles of public utility rate regulation
have always allowed reasonable rate distinctions, with many
factors determining reasonableness. Kahn, The Economics of
Regulation, at 63 (noting that, “from the very beginning,
regulated companies have been permitted to discriminate in
the economic sense, charging different rates for various
services”). But the ban adopted by the Commission prohibits
rate differentials for priority handling regardless of factors
that would render them reasonable under the above
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