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Net Neutrality: A Further Take on the Debate

Progress & Freedom Foundation: Progress on Point, Vol. 16, No. 26, December 2009

19 Pages Posted: 2 Jun 2010  

Barbara S. Esbin

Cinnamon Mueller

Date Written: December 9, 2009


The case for regulating the Internet has not been made. Proposed rules mandating network neutrality are not in response to evidence of market failure or widespread consumer harm, could deter investment in broadband deployment, and raise First Amendment concerns.

Regulatory advocates' assertions that the Internet has always been a “neutral” network and “we now suddenly cannot trust broadband network operators to discriminate in the handling of Internet traffic in socially beneficial ways, so we must outlaw their ability to do so at all” is flawed and there has always been prioritization of traffic. By requiring operators to request permission before changing the way they managed network traffic, such rules would freeze in place today's Internet operations and business models, and interfere with the organic change that has characterized the Internet ecosystem.

A 2007 Federal Trade Commission report found no evidence of failure in the broadband market and neither the FCC nor proponents of network neutrality regulation point to any significant changes in either market structure or provider behavior in the interim to support the conclusion that we are now at risk of the loss of Internet freedoms enjoyed by users. Moreover, if broadband markets are not sufficiently competitive to adequately protect consumers, steps should be taken to improve competitiveness as opposed to regulating network management practices. Additionally, financial analysts have warned that imposing regulatory constraints on ISPs would inhibit broadband investment.

Regarding “free speech” concerns, it highly unlikely that companies would monitor and censor individual communications on a widespread basis given the sheer volume of traffic on these networks and scant documented cases. Furthermore, protection against censorship by a private entity is does not fall under First Amendment protection. In fact, network neutrality rules will constitute unacceptable interference with the protected speech and press rights of broadband ISPs.

Keywords: Two Takes, Andrew Schwartzman, Media Access Project, FCC, Net/Network Neutrality, broadband market, broadband deployment, ISP, market failure, market competition, broadband competition, network providers, network management, David Clark, free speech, free market, broadband regulation

JEL Classification: D7, D73, K23, K21, L21, L5, L51, L52, L63, L82, L96, L98

Suggested Citation

Esbin, Barbara S., Net Neutrality: A Further Take on the Debate (December 9, 2009). Progress & Freedom Foundation: Progress on Point, Vol. 16, No. 26, December 2009. Available at SSRN:

Barbara S. Esbin (Contact Author)

Cinnamon Mueller ( email )

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2nd Floor
Washington, DC 200036
United States

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