Net Neutrality

Tussle Who’s battling? What’s at issue? Is it contained?

Discrimination? Harmful? –Examples? Beneficial? –Examples? Unpredictable? –Examples? How to differentiate… –Tests? Who should differentiate? –Market –Regulators When should differentiation happen? –ex ante –ex post

Neutral? Madison River Tel. Co.-Vonage (2005) –Vonage complained to FCC that Madison River blocked VoIP ports Verizon Wireless-NARAL (2007) –NARAL sought permission for opt-in text messaging program –Verizon initially denied; cited policy about “controversial or unsavory” messages –Verizon backtracked, reinterpreted “dusty” internal policy Free Press and Public Knowledge against Comcast (2008) –broadband Internet access over cable selectively targeting and interfering with connections of P2P applications

“Last Mile” and regulatory categorization Underlies Net Neutrality Debate Consumer A Backbone Broadband ISP Cable DSL FCC regulates “last mile” of cable, DSL from ISP to consumer Few last mile carriers  market power? Broadband’s status as “information service” exempts it from common carrier duties, e.g., interconnection and nondiscrimination **slide courtesy of Aaron Burstein

Common Carriers Telephone carriers subject to common carrier duties: –Interconnection –Right to exchange lawful messages –Right to attach devices to the network –Nondiscrimination **slide courtesy of Aaron Burstein

Relevant Common Carrier Regulations Hush-a-Phone (D.C. Cir. 1956) –Principle: Consumers may attach devices that are “privately beneficial without being publicly detrimental”. Carterfone (FCC 1968) –Followed Hush-a-Phone, required carrier to allow devices that provide “nonharmful interconnection” Computer Inquiries (FCC, 1970s & 80s) –Applied Hush-a-Phone principle to computers attached to phone system **slide courtesy of Aaron Burstein

Broadband Providers “information service” NCTA v. Brand X (U.S. Supreme Court, 2005) –Upheld FCC classification of cable modem access as “information service,” not common carrier Wireline Broadband Order (FCC 2005) –Extended Brand X to DSL  Common Carrier Duties do NOT apply **slide courtesy of Aaron Burstein

Disparate treatment Last mile Net neutrality = duty of nondiscrimination for broadband network providers.

Values Conflict Net neutrality quality of service Security privacy

Transparency Tussle Is transparency sufficient?

FCC’s Internet Policy Statement “to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers…to encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet” consumers are entitled to access the lawful Internet content of their choice. consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement. consumers are entitled to connect their choice of legal devices that do not harm the network consumers are entitled to competition among network providers, application and service providers, and content providers

Comcast order practices do not constitute reasonable network management, a judgment that is generally confirmed by experts in the field.. contravene industry standards and have significantly impeded Internet users ability to use applications and access content of their choice… ill-tailored to the company professed goal of combating network congestion… poses a substantial threat to both the open character and efficient operation of the Internet, and is not reasonable.

Comcast order Although we have not adopted (and we decline to adopt today) general disclosure requirements for the network management practices of providers of broadband Internet access services, the anticompetitive harm perpetuated by discriminatory network management practices is clearly compounded by failing to disclose such practices to consumers.