The Case for Rebooting the Network Neutrality Debate

[Commentary] The Internet uproar about network neutrality tends to come in waves. Right now we’re riding the crest of one.

In the two weeks since Federal Communications Commission Chairman Tom Wheeler’s proposal for new net neutrality rules became public, the Internet has erupted in protest. The legal vacuum created by the Court of Appeals for the DC Circuit threatens the Internet that we know and love. It threatens the start-up economy. But simply adopting rules that are network neutrality in name only is not enough. Different rules -- like a ban on access fees versus a ban on discriminatory or exclusive access fees -- will result in vastly different environments for the use of the network and in very different application innovation ecosystems. As we -- the public, policy makers, and regulators -- think through the choice between limited network neutrality regulation under Section 706 of the Telecommunications Act and more comprehensive network neutrality rules under Title II of the Communications Act, we need to ask the right questions and ask them in the right order:

1. What kind of rules do we need to protect users and innovators against the threat of blocking and discrimination?
2. How will access fees affect the environment for application innovation and free speech, and how does this affect what kind of rules we need?
3. And, finally, which foundation -- Section 706 or Title II -- will allow us to adopt these rules?

The answers are clear.

• First, we need strong network neutrality rules that prohibit blocking, discrimination against specific applications or classes of applications, and access fees – rules that apply equally to the fixed and mobile Internet.
• Second, we need rules that provide certainty to innovators, investors, and ISPs alike. Innovators and their investors need to know that they won’t be discriminated against and that ISPs cannot create new barriers to innovation by charging access fees.
• Third, start-ups are small and don’t have many resources, let alone a legal team. So we need rules that can be enforced through simple, straightforward legal processes, not rules that tilt the playing field in favor of large, established companies that can pay armies of lawyers and expert witnesses and afford long, costly proceedings at the FCC.
• Fourth, we need rules that give ISPs flexibility to realize their legitimate goals such as network management, price discrimination, or product differentiation, albeit through means that do not distort competition, harm application innovation, or violate user choice.
• Fifth, we need rules that do not overly constrain the evolution of the Internet infrastructure and keep the costs of regulation low.

[van Schewick is a professor at Stanford Law School and the director of the school's Center for Internet and Society]