Net Neutrality and Nondiscrimination Norms in Telecommunications: A Historical Perspective

“Net neutrality” refers to the principle that broadband providers should not discriminate when transporting content and applications over the Internet. After several years of debate, the Federal Communications Commission adopted binding net neutrality rules in December 2010. The cornerstone of this regime is a binding rule that forbids broadband providers from unreasonably discriminating when delivering Internet traffic.The prohibition on unreasonable discrimination has a long pedigree in telecommunications law, and net neutrality proponents have long asserted the need to extend that nondiscrimination norm to cyberspace. But the Commission’s net neutrality rules impose far greater obligations on broadband providers than the law ever imposed on other telecommunications companies. This expansive reach is particularly surprising given the fact that most broadband markets do not exhibit the characteristics that have historically triggered strict nondiscrimination obligations. While the Commission has pursued the laudatory goal of protecting consumers, its rules have the unintended consequence of stifling innovation in the broadband industry. A more nuanced, modest set of restrictions grounded in the Commission’s traditional nondiscrimination rules would be far superior policy, and would reflect the learned wisdom of seventy-five years of telecommunications law