Network Neutrality or Minimum Quality? Barking Up the Wrong Tree and Finding the Right One

Timothy Brennan, Mar 29, 2012

U.S. telecommunications regulation has long been characterized by contentious disputes. Pricing, subsidies, and legal authority to regulate have certainly been prominent, but one other theme has been prominent if not dominant: rights of access to incumbent networks. Past disputes of this sort led to a series of separation rules that, in part because of their cumbersome nature, resulted in a judicial rather than regulatory remedy, the 1984 breakup of (the “old”) AT&T into a nominally competitive long distance and equipment companies and seven regulated local exchange monopolies.

It hardly needs to be said that the telecommunications landscape has changed considerably since the 1984 divestiture. Thanks to the ubiquity of packet-switching and the explosive growth in mobile communications, the long distance and voice service landline markets central to the antitrust case are almost distant memories. But disputes over pricing, subsidies, legal authority, and rights of access remain. They have moved over to the broadband internet services provided both through landlines (cable television systems or telephone company digital subscriber line service (“DSL”) and fiber-optic service) and to mobile smartphones over cellular communications networks.

Perhaps the most contentious of these issues is network or “net” neutrality. Although some observers have found it an elastic concept, the central idea is nondiscrimination-that providers of broadband internet service should treat all content identically, in particular not block any content, and let users know how they manage content.

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