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2 J. on Telecomm. & High Tech. L. 141 (2003)
Network Neutrality, Broadband Discrimination

handle is hein.journals/jtelhtel2 and id is 145 raw text is: NETWORK NEUTRALITY, BROADBAND
Communications regulators over the next decade will spend
increasing time on conflicts between the private interests of broadband
providers   and   the   public's interest   in   a  competitive   innovation
environment centered on the Internet. As the policy questions this
conflict raises are basic to communications policy, they are likely to
reappear in many different forms. So far, the first major appearance has
come in the open access (or multiple access) debate, over the
desirability of allowing vertical integration between Internet Service
Providers and cable operators.1 Proponents of open access see it as a
structural remedy to guard against an erosion of the neutrality of the
network as between competing content and applications. Critics,
meanwhile, have taken open-access regulation as unnecessary and likely
to slow the pace of broadband deployment.
This paper takes a more general perspective. The questions raised
in discussions of open access and network neutrality are basic to both
Associate Professor of Law, University of Virginia Law School. I am gratefil for
comments on this paper from Tom Nachbar, Lawrence Lessig, Mark Lemley, Glen Robinson
along with participants at the 2003 Silicon Flatirons Conference and the 2003 University of
Ottawa Tory Law Speaker Series. The ideas in this paper were aided by discussions of
network neutrality questions with individuals at the Federal Communications Commission
and Congress, including Jordan Goldstein, James Assey, Jessica Rosenworcel and
Commissioner Michael Copps.
1. See generallyJoseph Farrell & Philip J. Weiser, Modularity, Vertical Integration, and
Open Access Policies: Towards a Convergence of Antitrust and Regulation in the Internet
Age, 17 HARV. J.L. &    TECH. (forthcoming 2003), available at http://repositories.
cdlib.org/iber/cpc/CPC02-035 (last visited Sept. 24, 2003); Glenn A. Woroch, Open Access
Rules and the Broadband Race, 2002 L. REV. MICH. ST. U. DET. C.L. 719 (2002); Glen 0.
Robinson, On Refusing to Deal with Rivals, 87 CORNELL L. REV. 1177, 1224-27 (2002);
Mark A. Lemley & Lawrence Lessig, The End ofEnd-to-End Preserving the Architecture of
the Internet in the Broadband Era, 48 UCLA L. REV. 925 (2001); Phil Weiser, Paradigm
Changes in Telecommunications Regulation, 71 U. COLO. L. REV. 819 (2000); James B.
Speta, Handicapping the Race for the Last Mile? A Critique of Open Access Rules for
Broadband Platforms, 17 YALE. J. ON REG. 39, 77-90 (2000).

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