Regulating the Internet "Like a Utility" Won't Yield an Open Internet - Unless ...

[Commentary] Regulating the Internet “like a utility” won’t work. It means bringing Internet service providers (ISPs) under Title II of the Communications Act, which is the statutory basis for common carrier regulation. Title II prohibits “unjust or unreasonable discrimination.” Preventing discrimination is also the purpose of net neutrality. That looks like a good fit. Why isn’t it enough? A simple rule saying nothing more than ISPs “shall not discriminate” would be meaningless. An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content. At those times, some discrimination must necessarily occur in allotting access to providers.

The question, then, is how to ensure that the discrimination is “fair”. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.

The solution entails applying Title II to the ISPs, plus one step more: a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs. Those competitors would have to pay for use of the channel. Under this approach, a consumer dissatisfied with the performance of one ISP could easily switch to another with no change to the household wiring -- an impossibility in today's system.