Freedom to Discriminate: Assessing the Lawfulness and Utility of Biased Broadband Networks

Rob Frieden · 20 Vand. J. Ent. & Tech. 655

Abstract

This Article assesses the potential for harm to broadband consumers and competitors when Internet service providers (ISPs) tier service by combining so-called “unlimited usage” with reduced video image resolution and also by not metering usage when subscribers access specific content sources. ISPs previously generated no regulatory concerns when they developed different tiers of service and price points based on content transmission speeds and monthly allotment of data consumption.

However, recent “zero rating” and “unlimited” data offers have triggered questions as to whether ISPs engage in unlawful paid prioritization of certain traffic from specific sources or in traffic degradation by receiving high-definition video content but delivering it with lower line resolution. Additional questions examine whether ISPs engage in detrimental traffic throttling by slowing traffic delivery speeds when subscribers exceed a monthly downloading threshold or when high-volume subscribers seek service in a congested area.

This Article further assesses the lawfulness of zero rating and video line-resolution degradation based on the two most recent sets of Federal Communications Commission (FCC) rules that treat ISPs as telecommunications service providers subject to common carrier regulation, as well as rules that now reclassify broadband access as an information service. This Article concludes that even though ISPs have self-serving, profit-maximizing goals when enhancing or degrading content carriage and display, such practices can have positive spillover effects that enhance consumer welfare without significantly harming competition in the marketplace of ideas and Internet commerce. Acknowledging the potential for harmful arrangements, this Article also recommends that the FCC and other national regulatory authorities implement a speedy and fair complaint resolution process to remedy content carriage disputes.