Opening Bottlenecks: On Behalf of Mandated Network Neutrality

54 Pages Posted: 17 May 2006

See all articles by Bill D. Herman

Bill D. Herman

Communication and Media Management, Gabelli School of Business


This paper calls for mandated "network neutrality," the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely may also increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The danger is real in the highly concentrated broadband market; BSPs have the incentives and means to engage in a high degree of broadband discrimination.

This paper demonstrates that ad hoc regulation under current statutory authority is ineffective in dissuading even grossly anticompetitive network discrimination. Further, network congestion can be and is managed adequately without resorting to discrimination. This paper also rejects the call for multiple special-purpose networks as both unrealistic and undesirable, and it rebuffs calls to postpone regulation. Finally, it rebuts allegations that regulatory capture will turn network neutrality mandates into incumbents' playthings.

FINAL VERSION, UPDATED JANUARY 23, 2007. For access to earlier versions, please contact author.

Keywords: network neutrality, internet, telecommunications law, FCC, First Amendment, communication law

JEL Classification: K20, K21, K23, K29, L13, L42, L43, L52, L86, L96

Suggested Citation

Herman, Bill D., Opening Bottlenecks: On Behalf of Mandated Network Neutrality. Federal Communications Law Journal, Vol. 59, No. 1, pp. 107-159, 2006, Available at SSRN:

Bill D. Herman (Contact Author)

Communication and Media Management, Gabelli School of Business ( email )

113 West 60th Street
New York, NY 10023
United States
347-987-1538 (Phone)


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