Seeking a Clearer Picture: Assessing the Appropriate Regulatory Framework for Broadband Video Distribution

This Note examines the appropriate regulatory framework for the distribution of commercial video content over broadband networks. As online video providers such as Netflix and Hulu expand, they are beginning to compete directly with the video services of major cable and telecommunications companies. Frequently, these companies also serve as a customer’s Internet service provider, leaving them in the position of carrying these competitive services over their broadband networks. This conflict has led to calls for regulation that would protect nascent online video services from feared anticompetitive actions by the major providers. In April 2010, against the backdrop of this expanding conflict, the U.S. Court of Appeals for the D.C. Circuit in Comcast Corporation v. FCC dealt a blow to the Federal Communications Commission’s (FCC) ability to regulate in this arena. There, the circuit court invalidated the FCC’s jurisdictional approach to regulating broadband Internet. Although the FCC has subsequently reasserted its jurisdiction over broadband, the fallout from Comcast has rekindled debates as to whether broadband is best governed by proscriptive FCC regulation, or whether oversight of this marketplace should be left to the general antitrust authorities—the Department of Justice and the Federal Trade Commission. This Note discusses the jurisdictional challenges to broadband oversight faced by each agency, and assesses the substantive and procedural merits of FCC and antitrust governance regimes. It then argues that, given the uncertainty regarding its authority, the FCC should abandon its efforts to regulate broadband video distribution in the absence of clear market harms. Finally, this Note proposes that this dynamic and rapidly evolving marketplace should develop outside the bounds of proscriptive regulations, with antitrust serving as a backstop if market intervention proves necessary