Indiana Law Journal

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91 Indiana Law Journal Supplement 33 (2016)


In trying to promote the development of an open Internet, the U.S. Federal Communications Commission (FCC) has primarily tried to encourage network providers to be transparent about their traffic management practices and quality of service prioritization policies. Dominant network operators have successfully challenged this minimalist approach to addressing end-user concerns about the rise of a two-tiered Internet, motivating the FCC to engage in yet another public consultation process to assess its future approach to the problem. This article maps the debate using Natural Language Processing (NLP) tools that allow us to build a systematic picture of the positions of the regulator and groups of private interests trying to shape its decisions. A quantitative linguistic analysis of the content of formal written submissions to the FCC by parties with divergent views helps document how the conceptual model of the regulator evolved during the rulemaking process leading to the FCC February 2015 network neutrality Order. Despite the adoption of a broader substantive basis by the FCC under Title II of the Communications Act, the rule-of-reason approach to substantive interpretation in the Order limits the capacity of the new regulatory framework to protect and promote an open Internet. The evidence suggests the public consultation process is likely to serve as a tool for legitimizing status quo institutional arrangements that allow operators to engage in discriminatory traffic prioritization strategies.