“Möbius-Strip Reasoning”: The Evolution of the FCC’s Net Neutrality Nondiscrimination Principle for Broadband Internet Services and Its Necessary Demise
The Internet plays an important role in the economy, providing jobs, productivity growth, and cost savings. More than anything, it has made the lives of many much simpler¾except of course for those who regulate and classify it. Indeed, computers and subsequently the Internet have proven to be a significant challenge to the Federal Communications Commission (FCC or the Commission) from the 1960s with the rise of the modern-day computer, to today, as network neutrality (net neutrality) remains at the forefront of the policy debate after President Obama specifically included provisions in his stimulus package requiring the Commission to formulate a national broadband plan. Thus, since the 1960s the Internet and the net neutrality term “nondiscrimination” (the principle that the Internet is comprised of “dumb pipes” which should give equal priority to all bits on the Internet¾whether it be an email bit or a video bit) have gone on a roller coaster ride that has currently sent the Commission down its sharpest hill yet: a Notice of Proposed Rulemaking (NPRM) to codify its four net neutrality policy principles and additionally add and codify principles of nondiscrimination and transparency.
This Comment analyzes the current state of the net neutrality nondiscrimination principle after the Net Neutrality NPRM, Comcast, and Third Way NOI, arguing that despite Congress’s mandate to the Commission for regulatory forbearance, the Commission has repositioned the Internet into a Title II regulatory framework. Part I of this Comment explores the path the Commission has taken up to this point, and how that path has led the Commission to both desert and then reassert its Title II authority. Part II analyzes how the nondiscrimination framework came from the shadows to the forefront of the Internet debate and asserts that nondiscrimination can be better clarified¾and Congress’s mandate better fulfilled¾if the Commission takes the advice of Commissioner Robert M. McDowell, by labeling the fifth principle as “anticompetitive” rather than as “nondiscrimination.” In doing so, “beneficial” discrimination, such as blocking spam and preventing congestion, can survive regulation of the Internet. Finally, Part II concludes with how the Commission should move forward, suggesting that the term nondiscrimination¾like the terms common carriage and basic transport¾should be retired rather than expanded in this new era of communications law.