Originally published: November 17, 2011
Last updated: December 21, 2011 - 12:15pm
[Commentary] To protect Internet service providers from uncertainty and clarify Internet users' rights, network neutrality/open Internet rules must clearly define what constitutes a violation, how broadband providers can comply, and what happens when a violation occurs. Stakeholders — including industry, regulatory, and public interest — must reach accord on three pivotal issues.
First, regulators must define what measurable performance standards and network management practices violate net neutrality. Justice Stewart's famous test for obscenity — "I know it when I see it" — will not suffice here. Because they may perceive the same behavior as either harmful or innovative, opposing interests are unlikely to agree ex post on what constitutes a violation. Ideally, efficient measurement mechanisms will inform consumers, allow regulators to monitor with minimal intrusion, and be easily and objectively reported by third parties or broadband providers. Such regulations will require two types of measurable information: (1) disclosure of network management policies, performance characteristics, and service terms; and (2) a set of network performance measures. On both counts, the fundamental questions are: Who will do the measuring? Where will the information be reported? And how will the information be used? The answers will depend on the type of data being measured.
Second, enforcement and corrections must be clearly defined and proportional to the seriousness of the violation. Broad regulation of a wide set of behaviors that might result in consumer harm would only stifle innovation without remedying an underlying market failure or addressing consumer harm. Instead, regulations must define both the violations and the appropriate, measured response to discourage negative outcomes, while protecting broadband providers who inadvertently violate a rule. Once a violation is identified, the remedy must also be proportionate to the violation in order to correct the perceived harm.
Third, recognizing the constantly and rapidly evolving nature of the Internet and its content, today's rules may not be applicable five years from now. Therefore, regulators should limit this first phase of net neutrality regulation to an initial review period — two to five years — to assess the evidence of existing harm and potential for harm in the future. If violations, complaints, or new concerns emerge, further oversight and enforcement, or other rule changes, may be warranted. The dynamic nature of the Internet, in short, limits the likelihood that any static set of rules will be appropriate over the longer term, absent the opportunity for periodic review and modification.
[Coleman Bazelon, an economist with The Brattle Group, is an expert in regulation and strategy in the wireless, wireline, and video sectors. Stuart Brotman is a faculty member at Harvard Law School, the President of Stuart N. Brotman Communications, and a Senior Advisor to The Brattle Group.]
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