Can Internet Service Providers Lawfully Enhance, or Degrade Third Party Content?
35 Pages Posted: 25 Feb 2017
Date Written: February 2017
This paper will assess the potential for harm to broadband consumers and competitors when ISPs, serving retail subscribers, can interfere with content that traverses their “last mile” networks enroute to consumers. The paper concludes that even though ISPs have self-serving, profit maximizing goals when enhancing, or degrading content carriage and display, such practices can have positive spillover effects that enhance consumer welfare without significantly harming competition in the marketplace of ideas and Internet commerce. On the other hand, the paper recommends that National Regulatory Authorities, such as the U.S. Federal Communications Commission (“FCC”), have available a speedy and fair complaint resolution process to remedy content carriage disputes.
While the FCC summarily rejected any violation of the First Amendment in the imposition of network neutrality rules, the paper suggests that some ISP-imposed carriage terms may have the potential for harming the marketplace of ideas and artistic works. The paper considers whether conditional retention of high quality screen resolution violates the First Amendment by creating financial incentives that favor content sources using obsolete, less bandwidth intensive transmission formats, and new financial burdens on both upstream content sources and downstream broadband subscribers seeking to retain optimal screen resolution.
Keywords: network neutrality, open internet, zero rating, sponsored data, service tiering, price discrimination, new media, paid prioritization
JEL Classification: K23, L43, L82, L86, L96
Suggested Citation: Suggested Citation