Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like

Article Source: Stanford Law Review, Vol. 67, No. 1, pp. 1-166, 2015
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Net neutrality rules stop Internet Service Providers (ISPs) from blocking online content; nondiscrimination rules limit interference short of blocking. Nondiscrimination rules should ban discrimination against specific applications and broad categories of applications.


Policy Relevance:

Allowing an entire category of application to be treated differently will harm innovation.


Key Takeaways:
  • ISPs like AT&T, Comcast, and Deutsche Telekom control access to the Internet; net neutrality rules stop ISPs from interfering with applications and content in harmful ways.
  • Network neutrality rules should:
    • Allow users freedom of choice to pick applications and content online;
    • Ban application-specific discrimination;
    • Allow developers to access users without permission of the ISP;
    • Keep the costs of application innovation low.
  • Some propose that ISPs be allowed to discriminate as long as they treat like applications alike, but this will not protect innovation; under this rule, an ISP like AT&T could interfere with all IP telephony apps, as long as it restricted all such apps equally.
  • The best nondiscrimination rule bans all discrimination among applications or different classes of applications; ISPs should be allowed to offer QoS only if every level of service is offered to all application providers equally.
  • Net neutrality rules based on antitrust law would fail to prevent some harmful discrimination.
    • Antitrust law condemns discrimination only when the discriminating ISP is a dominant player in the market.
    • Antitrust cases allow discrimination that serves a lawful business purpose.
    • Net neutrality proponents want to prevent discrimination generally, because fear of discrimination generally will discourage development of new applications.
  • The net neutrality debate is framed as a debate for or against QoS, but the reality is subtle; if ISPs may charge application providers for higher quality of service, regulators must ensure that ISPs do not downgrade the quality of the lowest, free service.



Barbara van Schewick

About Barbara van Schewick

Barbara van Schewick is the M. Elizabeth Magill Professor of Law at Stanford Law School, Director of Stanford Law School’s Center for Internet and Society, and Professor by courtesy of Electrical Engineering in Stanford University’s Department of Electrical Engineering. Her research focuses on the economic, regulatory, and strategic implications of communication networks. In particular, she explores how changes in the architecture of computer networks affect the economic environment for innovation and competition on the Internet, and how the law should react to these changes.

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