The Persistent Problems of Net Neutrality or Why Are We Still Lacking Stable Net Neutrality Regulation

This book chapter suggests reasons why stakeholders have not managed to reach an agreement, and offers possible solutions. In that direction I discuss three issues. The first has to do with the persistence of policy-makers to adopt either the full arsenal of net neutrality protections (e.g. U.S., Brazil, Mexico, Chile, Netherlands, Slovenia), or no rules at all. This black-and-white approach disregards the nuances of the implicated issues and tends to be over-inclusive or under-inclusive. Instead, regulators could choose a flexible framework clause, like those used in antitrust, which is capable of filtering out harmful practices while allowing the rest.

The second problem concerns the fixation of stakeholders with certain historical features of the Internet, which are seen as immutable axioms that should define today’s Internet the same way they did decades ago (e.g. end to end, neutrality, openness). This clinging is impractical because the Internet and the marketplace around it have evolved and the continuing application of historical principles without justifying their modern relevance obscures rather than illuminates the debate. To set the discussion on the proper base, it is therefore advised that the starting point for the debate is not how to ensure neutrality, openness, non-discrimination and the end to end principle, but whether those characteristics apply with the same force today as when the Internet was first conceived and commercialized. Once there is agreement as to which principles serve the Internet better, the discussion can continue on how to safeguard them.

Third, and on a related topic, to determine whether regulation is needed to safeguard the Internet’s desired features (as per above), regulators need to determine the competitive conditions in the market, which includes the identification of potential bottlenecks and the power interrelations among them. Current practice seems to ignore a prevalent form of competitive pressure in telecommunications, namely vertical competition, which, if taken into account, should affect the way way regulators view the necessity or type of appropriate regulation.