Net Neutrality and Nondiscrimination Norms in Telecommunications

“Net neutrality” refers to the principle that broadband providers should treat all Internet content and applications equally. After much debate, the Federal Communications Commission adopted binding net neutrality rules in December 2010, which forbid broadband providers from unreasonably discriminating when delivering Internet traffic.

The prohibition on unreasonable discrimination has a long pedigree in telecommunications law, and net neutrality proponents have long asserted the need to extend that nondiscrimination norm to cyberspace. But the Commission’s net neutrality rules impose far greater obligations on broadband providers than the law ever imposed on other telecommunications companies. While the Commission laudably seeks to protect consumers, its rules have the unintended consequence of stifling innovation in the broadband industry. A more nuanced set of restrictions grounded in the Commission’s traditional nondiscrimination rules would be far superior policy, and would reflect the learned wisdom of 75 years of telecommunications law.