Law and the Open Internet

34 Pages Posted: 14 Oct 2011 Last revised: 24 Dec 2013

See all articles by Adam Candeub

Adam Candeub

Michigan State University - College of Law

Daniel John McCartney

Michigan State University - College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: October 13, 2011

Abstract

The Federal Communications Commission (FCC) has issued a new set of internet access regulations and policies. These would prohibit broadband service providers, such as AT&T or Comcast, from “discriminating” against unaffiliated content providers. The FCC’s proceedings, and the network neutrality debate, concentrate on two economic questions (i) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access and (ii) how to preserve the Internet’s capacity for creativity and innovation.

Despite economics’ prominence in the debate, economic theory cannot answer these questions. Theoretical models of vertical foreclosure are ambiguous and inconclusive and empirical data nonexistent. And, the debate misapplies normative, legal concepts of “discrimination” and “equal treatment” onto internet traffic management engineering. These concepts worked in a circuit switched telephone network in which “equality” can exist at switch points, but make little sense in the packet-switched internet in which “equality of outcomes” of internet experience is what matters.

With its narrow focus, the debate has also missed that actual internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with “discrimination” as such. Policymakers lack theoretical understanding and empirical knowledge concerning internet industrial organization. We, therefore, argue for a “bottom up” approach to regulation, analogous to fair use in copyright law, with case-specific adjudications creating a common law of acceptable network practice.

Keywords: Network regulation, law and economics, Federal Communications Commission

Suggested Citation

Candeub, Adam and McCartney, Daniel John, Law and the Open Internet (October 13, 2011). Federal Communications Law Journal, Forthcoming, MSU Legal Studies Research Paper No. 09-22, Available at SSRN: https://ssrn.com/abstract=1943747

Adam Candeub (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Daniel John McCartney

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
155
Abstract Views
2,787
rank
188,671
PlumX Metrics