Net Neutrality

1
Net Neutrality

2
Tussle

• Whos battling?
• Whats at issue?
• Is it contained?

3
Discrimination?

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

4
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

5
Last Mile and regulatory categorization
Underlies Net Neutrality Debate

• Broadband ISP
• Cable
• DSL

Consumer A
Backbone

• FCC regulates last mile of cable, DSL from
  ISP to consumer
• Few last mile carriers ? market power?
• Broadbands status as information service
  exempts it from common carrier duties, e.g.,
  interconnection and nondiscrimination
• slide courtesy of Aaron Burstein

6
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

7
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

8
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

9
Disparate treatment

• Last mile
• Net neutrality duty of nondiscrimination for
  broadband network providers.

10
Values Conflict

• Net neutrality
• quality of service
• Security
• privacy

11
Transparency

• Tussle
• Is transparency sufficient?

12
FCCs Internet Policy Statement

• to ensure that broadband networks are widely
  deployed, open, affordable, and accessible to all
  consumersto 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

13
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.

14
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.