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Antitrust Oversight of an Antitrust Dispute: An Institutional Perspective on the Net Neutrality Debate

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  • Nuechterlein, Jonathan E.
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    Abstract

    The term "net neutrality" describes various proposals for regulatory intervention in the Internet marketplace. For example, under one type of proposal embodied in pending legislation, regulators would ban a broadband Internet access provider (such as Comcast or Verizon) from reaching commercial agreements with particular applications and content providers to provide the sophisticated quality-of-service techniques needed to support unusually performance-sensitive applications and content, such as real-time video streaming or multiplayer online videogames. Such proposals will likely be, one way or the other, a principal focus of telecommunications policy for the next decade.They have captured the attention of Congress, where several bills on the topic have been introduced; of legal, economic, and technology scholars across the ideological spectrum; and, of principal interest here, two key federal agencies: the Federal Communications Commission and the Federal Trade Commission. Most discussions of net neutrality focus on the merits of the debate: on the substantive costs and benefits of government intervention in the broadband market. This paper focuses instead on the comparatively neglected institutional dimension of the debate: an inquiry into which federal agencies are best positioned to resolve net neutrality disputes when they arise. As the paper argues, the net neutrality controversy is best understood as a classic antitrust dispute about "vertical leveraging," and the institutions most likely to appreciate the economic complexities of that dispute are the nation's specialized antitrust agencies: the Justice Department and the FTC. Because these agencies regulate the economy at large rather than a single industry, they are less vulnerable than the FCC to capture by industry factions; they are less likely to develop industry-specific bureaucracies with incentives to keep themselves relevant through over-regulation; and, because of their firm grounding in antitrust enforcement, they are more likely to resolve competition-oriented disputes dispassionately and on their economic merits.The paper thus argues for reviving in this context the competition-policy model that prevailed for much of the final quarter of the last century: a regime in which antitrust authorities, rather than industry-specific regulators, take the lead in addressing vertical-leveraging claims against providers of telecommunications transmission platforms.

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    Bibliographic Info

    Paper provided by Regulation2point0 in its series Working paper with number 200.

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    Date of creation: Feb 2008
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    Handle: RePEc:reg:wpaper:200

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    Web page: http://regulation2point0.org/

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    Cited by:
    1. Toshiya JITSUZUMI, 2011. "Japan's Co-Regulatory Approach to Net Neutrality and its Flaw: Insufficient Literacy on Best-Effort QoS," Communications & Strategies, IDATE, Com&Strat dept., vol. 1(84), pages 93-110, 4th quart.

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