Think-tank scholars and members of academia wrote to the Federal Trade Commission (FTC) on Monday,  urging the agency to warn the FCC against adoption of a blanket prohibition on paid prioritization or the  imposition of Title II common carrier rules on broadband providers as part of ongoing proceedings  to re-craft the FCC’s open Internet rules.

Included among the 32 signatories of Monday’s letter are Robert Crandall and Robert Litan, both  non-resident senior fellows at the Brookings Institution; University of Pennsylvania law professor  Christopher Yoo; Hal Singer, adjunct business professor at Georgetown University; and Gerald  Faulhaber, professor emeritus at the University of Pennsylvania Wharton School. Asserting that a  blanket ban on paid prioritization agreements would “[truncate] the factual analysis needed to  condemn such agreements,” the signatories advised that the FTC “should caution the FCC by warning  the agency of the adverse effects of adopting per se restrictions on potentially pro-competitive  conduct.” In support of that argument, the signatories highlighted the potential economic benefits  of paid prioritization for edge providers that “would likely jump at the chance to have their  traffic de-prioritized (at lower cost) because their services are time-insensitive.” Asserting that  “slower delivery of these bits wouldn’t matter much to . . . users,” the academics told the FTC  that “the cost of delivering those bits would be lower than if they were in a ‘faster lane’ of Internet traffic.”

Maintaining that neither the FCC’s record nor “basic economics” support a blanket ban, the  academics said the FCC should instead consider restricting paid prioritization on a case-by-case basis. Under that  approach the edge provider or the FCC would bear the burden of proving that a particular agreement  violates the FCC’s open Internet policy. With respect to Title II, the letter further contends that  Title II reclassification “would create a host of additional problems” that include “dampening the  incentives of ISPs to continue investing in the core of the network, chilling new entry into the  broadband market, and potentially expanding common carrier regulation to interconnection, peering  and even some ‘edge’ services.” Pointing to a 2006 FTC staff report on broadband competition that  recommends “proceeding with caution before enacting broad, ex ante restrictions in an unsettled,  dynamic environment,” the letter claims that an FTC advisory to the FCC is warranted as “the net neutrality debate has shifted dramatically.”