Light-Touch Regulation by Banning Unreasonable Discrimination
16 Pages Posted: 21 Jul 2017 Last revised: 16 Aug 2017
Date Written: July 17, 2017
Since the early 2000s, all seven chairmen of the Federal Communications Commission have publicly supported the “Internet freedoms,” which give users the right to access the lawful content, application, and devices of their choice. The public interest is best served by a regulatory environment that gives Internet access providers as much freedom as possible to innovate and expand, while preventing Internet access providers from becoming information gatekeepers or violating these freedoms. Providers of broadband Internet access services have the technical capability and the financial incentive to violate these freedoms. Thus, there should be some ex ante Open Internet rules, and only the Federal Communications Commission has the mandate and expertise to establish and enforce such rules. However, it is possible to improve upon the 2015 Open Internet rules. Some portions of the existing rules create too much regulatory uncertainty, such as the “Internet conduct standard.” Other portions do not focus as specifically as they could on Internet service provider strategies that could lead to gatekeeping. We propose an alternate approach to “light-touch” regulation based on the idea that the FCC should prohibit “unreasonable discrimination,” while allowing reasonable discrimination. Discrimination is unreasonable when it is based on content, application, service, or attached device. To be effective, rules must appropriately address specialized services as well. The paper does explain how the proposed rules might fit under either Title I or Title II, but the infamous question of whether the FCC should reclassify is outside our scope.
Keywords: Network Neutrality, Open Internet, Internet Freedom, Federal Communications Commission, Competition
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