by Olivier Sylvain, Associate Professor, Fordham University School of Law. Professor Sylvain’s post draws from arguments he makes in a law review article coming out in Hastings Law Journal early next year. See Olivier Sylvain, Network Equality, 67 Hastings L. J. __ (forthcoming 2016).
*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.
Two Cheers for the Open Internet
The FCC’s Open Internet Rules establish that users and application developers should be able to connect to all lawful Internet content, applications, and services of their choice without the permission of their broadband service providers. The Rules do this by imposing bright-line rules on broadband providers against (a) blocking subscribers’ Internet connections, (b) throttling subscribers’ Internet connections, or (c) prioritizing their affiliated content, applications, or services over those of their rivals. And, in a catch-all provision, the Rules also bar providers from otherwise unreasonably interfering with subscribers’ Internet connections. This is to say that broadband providers now must have really good reasons to interfere with or disadvantage paying subscribers’ Internet connections.
The Rules enshrine in public law the view that users and developers at “the edges of the network” should be the primary sources of innovation in our networked information economy. Service providers should be little more than conduits or, in the parlance of public law, “common carriers” through which Internet communications should be able to travel freely.
This is not the first time that regulators have treated commercial gatekeepers like broadband service providers in this way. This regulatory approach is very old, dating back to the old English common law treatment of ports, granaries, and other indispensable gateways of commerce.
And, in the United States, the distinction between broadband providers as common carriers on the one hand and content, applications, and services on the other is at least four decades old. In the late 60s and 70s, the agency’s concern was with protecting the nascent industry in networked computing against the predations of service providers. Then, not unlike now, the FCC sought to ensure that service providers supplied network access to all comers – affiliates and competitors alike.