This paper assesses whether and how Internet Service Providers (“ISPs”) can provide quality of service enhancements to improve the likelihood that broadband subscribers can access “must see” video content without a problem. Ventures such as, Alibaba, Amazon, Apple, Hulu, Netflix, and YouTube now offer a large inventory of video content available via the Internet to televisions, computer terminals, smartphones and tablets. These bandwidth intensive applications have the potential to generate congestion that would degrade image quality, because consumers have increasing demand for video content access, anytime, anywhere, via any device and in any transmission and presentation format. Households often generate demand for simultaneous, multiple video transmission bitstreams.
In light of substantial increases in downstream traffic volume, ISPs have sought additional compensation from upstream carriers and content sources. However, some National Regulatory Agencies (“NRAs”), such as the United States Federal Communications Commission, prohibit ISPs from offering “paid prioritization” that would enhance quality of service with “better than best efforts” traffic routing.
The paper concludes that NRAs should identify how ISPs can reduce the potential for degraded delivery of “mission critical”, “must see” video content without harming competition and consumers. ISPs should have the option of providing service enhancements for additional compensation provided these options do not degrade conventional best efforts routing and serve anticompetitive goals.
While an extensive academic literature exists on the subject of open access to the Internet, this paper concentrates on the issue of paid prioritization whether its prohibition could adversely affect the ability content providers, distributors and carriers to provide desirable alternatives to conventional Internet traffic routing. The paper suggests that NRAs conditionally permit “retail ISPs” to provide video delivery enhancements like that offered by Content Distribution Networks. Carriers proposing such quality of service enhancements should bear the burden of proving that the proposed specialized service will not degrade conventional best efforts routing, or prioritize traffic in ways designed to disadvantage competitors and harm consumers.