Antitrust Oversight of an Antitrust Dispute: An Institutional Perspective on the Net Neutrality Debate

Several years after its first appearance in the telecommunications lexicon, the term “net neutrality” remains elusive, in part because its meaning varies with the speaker and the speaker’s agenda. But at the highest level of generality, the term describes two distinct types of proposed regulation of broadband Internet access providers. Under one type of proposal, regulators would draw and enforce a line between acceptable network management practices and unacceptable “blocking” or “degradation” of disfavored Internet applications and content. Under the other, regulators would ban a broadband Internet access provider from reaching commercial agreements with particular applications and content providers to provide the sophisticated performance-enhancement techniques—over and beyond best-efforts Internet access—needed to support unusually performance-sensitive applications and content, such as real-time video streaming or multiplayer online videogames. (In a variation on this second theme, regulators would permit such agreements but subject them to “nondiscrimination” requirements.) These two types of proposals are distinct but complementary: net neutrality proponents typically advocate both the anti-blocking rule and a ban on (or close regulation of) business-to-business relationships between broadband networks and applications or content providers. Such proposals will likely be, one way or the other, a principal focus of telecommunications policy for the next decade. They have captured the attention of Congress, where several bills on the topic have been introduced; of Senators Barack Obama and Hillary Clinton, who both advocate strong forms of net neutrality regulation; of legal, economic, and