An Antitrust-Informed Approach to Regulating Internet Interconnection

Abstract

For over a decade, net neutrality has dominated telecommunications policy. Advocates targeted broadband networks because of their strategic position as the gateway to consumers, which potentially positions them to shape the flow of information online. Yet as former the Federal Communications Commission (“FCC” or the “Commission”) Chairman Julius Genachowski noted, these broadband providers are merely the “onramps” to the Internet— the last mile of a system that brings over 35,000 networks together to move information packets from origin to destination.

Interconnection agreements stitch these networks together. These arms’ length transactions define the terms by which networks exchange traffic with one another. But like all contracts, interconnection agreements can be subject to dispute. If not resolved, these disputes can expose fault lines between networks that shatter the consumer’s illusion of a seamless Internet experience. Partly in recognition of its lack of familiarity with this market and partly to avoid allegations of “regulating the Internet,” the Commission has waded slowly into these waters and has refrained from asserting plenary authority over interconnection agreements. The early interconnection scholarship largely reflects the network architecture of its period and does not take into account revolutionary changes in modern interconnection markets. This Article attempts to close that gap and offer a model for interconnection regulation in the modern era.