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Document Type

Article

Publication Date

1-2010

Publication Citation

62 Federal Communications Law Journal 13 (2010)

Abstract

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article's chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency on a host of industry decisions where technology plays a pivotal role tilts decidedly against counting on successful regulation. Second, the technology here is unlike anything the FCC has successfully regulated before. Judging networks, which are constructed and operated for maximum private gain and not based on a government-approved rate of return model, isn't among them. Finally, the agency itself has yet to demonstrate that it is the best locus of power for deciding the fate of the Internet. The political economy of the FCC makes it less successful as an expert agency.

This Article focuses on two somewhat interrelated solutions: reliance on the shame/Wiki/blog culture of the Internet and disclosure of management practices by network providers, enforceable under contract. These approaches are congenial with the most basic Internet values of information transparency and sharing.