Policy considerations and recommendations

Some have argued for a balanced approach to broadband network

discrimination that acknowledges the potential abuses by network providers as well as

recognizing acceptable conditions for network management.530 _{This would require a}

large degree of transparency and trust on behalf of all parties involved. The existing policies of NN have been constructed through an amalgamation of laws, stakeholder relationships and technological developments. The normative values upon which the NN debate takes place have been established through the historical emergence of the issue as well as the cultural and evaluative perspectives of the values associated with the global information networking.

One side effect of the 2014 Verizon ruling was a legal reinforcement of the FCC’s

jurisdiction to regulate the internet – a power with some open internet advocates have warned may set a bad precedent for the agency’s ability to interfere with the web in the

530  _{Peha,  The  Benefits  and  Risks  of  Mandating  Network  Neutrality,  and  the  Quest  for  a}  

future.531 This balance of neutrality norms means balancing the public’s desire for robust regulation of powerful network operators, while also reassuring suspicions of government overreach online.

With this tension in mind, Marsden has argued for a co-regulatory or self-

regulatory standard in which stakeholders (ISPs, CSPs, NGOs, and governments) agree

to enforce a normative standard for non-discrimination.532 _{With the exception of some}

abuses, this has largely been the status quo in the US. The FCC’s 2010 Open Internet Order nominally enforced standards supporting NN with some flexibility for network QoS, tiered pricing and interconnection negotiations. In the co-regulatory model, networks would be discouraged from closed or discriminatory behavior for fear of market reactions and public outcry.

Co-regulation and self-regulation may offer an acceptable approach to promoting neutrality without onerous regulations, but it may not be effective in all situations. In the EU where regulations must be applied across many different national infrastructures and ISP competition is more robust because of unbundling, co-

regulation may offer a way to establish more general, common-ground principles for internet governance. However, in the US network owners and ISPs are often the same and competition is less robust, this option seems more susceptible to manipulation and inefficiency.

Following Verizon’s successful legal challenge, the FCC’s authority to regulate internet communication was reaffirmed, but the agency has exhausted nearly all

531  _{McSherry,  “Is  Net  Neutrality  a  FCC  Trojan  Horse?”.}  

options short of reclassification for preserving network neutrality. Some have argued that content and pricing discrimination may be better challenged on antitrust grounds by agencies like the Federal Trade Commission or Justice Department, particularly as

network providers increasingly merge and vertically integrate.533 _{While the FCC has}

made broadband network neutrality a stipulation of several large telecommunications mergers, these stipulations are only temporary a solution to long-term problems.

6.4.1 Political landscape for network neutrality today

Political change is unpredictable. As chapter two showed, the policy history of network neutrality in the US is marked by unexpected successes, remarkable failures, incremental developments and rapid shifts in political and social momentum.

Legislation and legal decisions often have significant and unexpected results – the recent Verizon decision is just the most recent example. With these reservations, the following policy recommendations attempt to take into consideration the current political and regulatory environment for internet regulation in the US.

Clear legislative policies supporting network neutrality appear less likely in

the short-term. Though a handful of neutrality-relevant bills (both for and against) have

been suggested following the 2014 Verizon ruling, these appear to be largely political

gestures.534 _{While US President Barack Obama has expressed support for network}

neutrality and other “open internet” policies, the President’s support has not

533  _{Sasso,  “Forget  the  FCC—Should  the  FTC  Enforce  Net  Neutrality?”;  Boliek,  “Fcc}  

Regulation  Versus  Antitrust  How  Net  Neutrality  Is  Defining  the  Boundaries”;  FCC  Panel,  

Ensuring  Competition  on  the  Internet.  

534  _{Finley,  “Democrats  Aim  to  Reinstate  Network  Neutrality  With  New  Bill”;  Eggerton,}   “Latta  Bill  Would  Block  Title  II.”  

translated into robust political action since at least 2010.535 _{In part, the lack of more} political attention to the issue (from both the legislative and executive branches) may be

due to the telecommunications industry’s sizable lobbying and campaign donations.536

This has raised concerns about regulatory capture and a “revolving door” regarding

telecommunications oversight in general, extending to the FCC. This was particularly apparent with the appointment of FCC chair Wheeler, a former lobbyist for the telecom industry.537

6.4.2 Network Neutrality policy proposals

Just as the symptoms span all four modalities, so should the treatments. The following recommendations are informed by this projects analysis of the US approaches and regulation of network neutrality, along with comparative examinations of each chapter’s international case study. They range from minor oversight suggestions such as improved merger and transparency oversight to instituting a separations principle that would result in a wholesale restructuring of the US media and broadband industry. While it is conceivable that all or none of these proposals are translated into law, they each offer elements that would promote a more net neutral and non-discriminatory web.