Unscrambling the FCC's Net Neutrality Order: Preserving the Open Internet - But Which One
![handle is hein.journals/cconsp20 and id is 97 raw text is: UNSCRAMBLING THE FCC's NET
NEUTRALITY ORDER: PRESERVING THE
OPEN INTERNET-BUT WHICH ONE?
Larry Downest
I. INTRODUCTION
This article offers a critical reading of the Federal Communications
Commission's (FCC or Commission) December 23, 2010 Report and
Order entitled Preserving the Open Internet.I This year-long proceeding,
concluded just as the 2010 lame duck Congress was about to adjourn, resulted
in significant new regulations for some broadband Internet access providers.
The new rules enact into law a version of what is sometimes referred to as
the net neutrality principle. Proponents of net neutrality regulation argue that
the Internet's defining feature-and the key to its unarguable success-is the
content-neutral routing and transport of individual packets through the network
by Internet service providers, a feature of the network that requires strong
2
protection and enforcement by the FCC. The FCC describes its new rules as
rules of the road to ensure a level playing field for application and other
service providers in accessing U.S. markets, consumers, and devices.3
t Larry Downes is Senior Adjunct Fellow with TechFreedom. His books include LARRY
DOWNES, UNLEASHING THE KILLER APP: DIGITAL STRATEGIES FOR MARKET DOMINANCE
(Harvard Business School Press 1998) and, most recently, LARRY DOWNES, THE LAWS OF
DISRUPTION: HARNESSING THE NEW FORCES THAT GOVERN LIFE AND BUSINESS IN THE
DIGITAL AGE (Basic Books 2009). This article was adapted from testimony delivered on
February 15, 2011, before the House Judiciary Committee's Subcommittee on Intellectual
Property, Competition, and Internet. Ensuring Competition on the Internet: Net Neutrality
andAntitrust Before the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of Larry
Downes, Senior Adjunct Fellow, TechFreedom). The author thanks Berin Szoka and Adam
Marcus for helpful comments and corrections on an earlier draft.
In re Preserving the Open Internet; Broadband Industry Practices, Report and Order, 25
F.C.C.R. 17905 (Dec. 21, 2010) [hereinafter Open Internet Order].
2 See Kim Hart and Sara Kehaulani Goo, Tech Faceoff Net Neutrality in the Eye of the
Beholder, WASH. POST (July 2, 2006), http://commcns.org/sV1fjD.
See Tim Wu, Net Neutrality FAQ, http://commcns.org/rOeb2M (last visited Oct. 7,
2011). Wu is generally regarded as having coined the term net neutrality, which does not,
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Unscrambling the FCC's Net Neutrality Order: Preserving the Open Internet - But Which One
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