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Publication Citation

64 Federal Communications Law Journal 493 (2012)


The FCC has issued a new set of Internet access regulations and policies (namely Preserving the Open Internet Broadband Industry Practices, Report and Order, FCC 10-201, rel. Dec. 23, 2010), which would prohibit broadband service providers like AT&T or Comcast from discriminating against unaffiliated content providers. The FCC's proceedings, and the network neutrality debate, concentrate on two economic questions: (1) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access, and (2) how to preserve the Internet's capacity for creativity and innovation. Yet despite the prominence of economics in the debate, economic theory cannot answer these questions. The debate also misapplies normative, legal concepts of discrimination and equal treatment onto Internet traffic management engineering. These concepts worked in a circuit switched telephone network in which equality can exist at switch points, but make little sense in the packet-switched Internet in which equality of outcomes of Internet experience is what matters. With its narrow focus, the debate has also missed the fact that actual Internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with discrimination as such. We, therefore, argue for a "bottom up" approach to regulation, analogous to fair use in copyright law, with case specific adjudications creating a common law of acceptable network practice.