A Tale of Two Commissions: Net Neutrality and Regulatory Analysis

Two independent federal regulatory agencies, the Federal Communications Commission (“FCC”) and the Federal Trade Commission (“FTC”), both claim regulatory authority over broadband Internet access. Both have actively explored the costs and benefits of “net neutrality” regulation since 2005, when a series of FCC decisions declared that broadband is an information service rather than a telecommunications service. Since then, the FTC has held a public workshop and issued a 165-page Staff Report. The FCC has issued a Policy Statement, a Notice of Inquiry, and multiple regulations imposing net neutrality rules on 22 MHz of radio spectrum to be auctioned for commercial wireless services. In general, “net neutrality” means that Internet service providers should treat all data packets identically. Traditionally, Internet service providers transported data packets on a “best efforts” basis, with no particular packet receiving priority treatment. Today, Internet service providers can block, slow, or charge unequally for different content if they treat different packets differently. Such discrimination can help or harm consumers, depending on the circum-