I’ve posted a draft of my latest law review article, Only Connect to the SSRN archive. Comments are welcome.
My claim is that there are two types of rules for communications networks: interconnection rules and non-discrimination rules. The distinction has never been fully appreciated, even though regulators have imposed both requirements many times. Non-discrimination questions predominate today, but in reality, the central challenge of our era of digital convergence is interconnection.
Both sides of the network neutrality debate are therefore mistaken. I share the concerns of network neutrality advocates that broadband network operators will constrain applications and services on their networks, thereby throttling innovation. However, I’m skeptical the remedy they propose — non-discrimination safeguards — will work. A renewed emphasis on interconnection could address the primary network neutrality concerns, and also potentially avoid a disastrous balkanization of the Internet, which otherwise looms as a real possibility.
These are important, complicated issues, and I think the current battle in Washington fails to address some essential points. Again, I welcome feedback and suggestions.