Title II does not prohibit paid prioritization

[Commentary] Much of the controversy surrounding the Federal Communications Commission’s network neutrality proceeding involves the issue of paid prioritization: whether an Internet content or application provider can pay for priority delivery or minimum guaranteed speed over last-mile broadband networks.

Title II Section 202 prohibits telecommunications providers from engaging in “unreasonable discrimination.” But there’s an important limitation on the scope of Section 202. It does not require that the telecommunications provider offer only a single class of service to all people. Rather, it only prohibits discrimination among “like” services -- services that a customer may view as “functionally equivalent.”

In other words, we need to separate differentiation (offering different products at different prices) from discrimination (offering the same product at different prices).

[Lyons is an associate professor at Boston College Law School]