Appropriate Rules for Managed or Specialized Services

Poorly written rules for specialized services or managed services, a category of services recognized in the FCC’s 2010 Open Internet Order, could turn the pending Open Internet proceeding into a farce. (This comment will use the terms specialized services and managed services interchangeably.) There are people who seem to believe that any service from an Internet service provider (ISP) that has a quality of service (QoS) that is different from standard Internet service must be a specialized service, and that specialized services are exempt from all Open Internet rules. If the FCC accepts both premises, then it is possible that no form of discrimination, no matter how unreasonable or anticompetitive, could ever be prohibited under Open Internet rules. Imagine that an ISP offers a new service that complements its standard Internet service. If the new service has a different QoS from standard Internet, then the new service is labeled a specialized service and there are no applicable Open Internet Rules to break. On the other hand, if the new service has the same QoS as standard Internet, then there is probably no discrimination going on, which means there is also no chance that the ISP has violated antidiscrimination rules. There is a similar problem if specialized services are exempt from all rules, and if any service that carries traffic from just one application type is considered a specialized service. In this case, the mere act of blocking traffic from the other application types makes the service exempt from rules that prohibit unreasonable blocking based on application.