The Next Frontier for Network Neutrality

The challenge for policymakers evaluating calls to institute some form of network neutrality regulation is to bring reasoned analysis to bear on a topic that continues to generate more heat than light and that many telecommunications companies appear to believe will just fade away. Over the fall of 2007, the hopes of broadband providers that broadband networks could escape any form of regulatory oversight were dealt a blow when it was revealed that Comcast had degraded the experience of some users of Bittorent (a peer-to-peer application) and engaged in an undisclosed form of network management. This incident, as well as the polarized debate that followed it, underscores the need to reframe the policy and academic debate over broadband regulation and begin evaluating a blueprint for a next generation regulatory strategy that will focus on promoting innovation in the network itself and by applications developers. This Article seeks to do just that. This Article begins by explaining how the debate over network neutrality has all-too-often presented polarized perspectives and slogans where more nuanced analysis is called for. As Internet pioneer David Clark commented on the network neutrality debate, [m]ost of what we have seen so far (in my opinion) either greatly overreaches, or is so vague as to be nothing but a lawyer\u27s employment act. As the Article explains, any effort by Congress to develop a well-specified response to network neutrality concerns would be premature, as the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) should first be afforded an opportunity to develop an effective consumer protection and competition policy strategy. As the Article explains, the FTC has an important opportunity - and indeed a responsibility - to develop and implement a consumer protection strategy in this area, calling for effective disclosure of broadband terms of service and the enforcement of the commitments made in those policies. Moreover, as to the relevant competition policy issues, the Article calls on either the FTC or the FCC (or both) to develop and implement an effective institutional strategy to guard against anticompetitive refusals to provide access to quality of service assurances. In short, the appropriate response to network neutrality concerns is not to ban such quality of service assurances altogether - as that would stifle the Internet\u27s development - but to ensure that the offering of such assurances is not used to injure competition and harm consumers