The FCC's Network Neutrality Ruling in the Comcast Case: Towards a Consensus with Europe?

In August 2008, the FCC found that Comcast's restrictions on peer-to-peer upload transmissions were unreasonably discriminatory, arbitrarily targeted a particular application, and deprived consumers of their rights to run Internet applications and use services of their choice. The Comcast ruling represents a significant change in the FCC's direction: given the FCC's past decisions that broadband Internet access services do not fall within the "common carrier" category, it is notable that the agency has now imposed nondiscrimination requirements on these services. This Article shows that the rationales articulated in the FCC's Comcast order, stressing both (i) concerns about protecting competition and (ii) concerns about protecting consumers from disruption of their ability to communicate freely and privately, are rooted in centuries of Anglo-American law defining he obligations of "common carriers." The FCC appears to be moving away from its traditional emphasis on the competition policy concerns, which justify asymmetrical regulation of dominant providers for the sake of enabling competition, and toward an emphasis on the consumer protection issues, which justify symmetrical regulation of all service providers regardless whether they have market power. These developments in the U.S. echo the discussion now going on in Europe in the context of the package of proposals on a new common regulatory framework for telecommunications, released by the European Commission on Nov. 13, 2007, and which is now being debated by the European Parliament and Council. On both sides of the Atlantic, a trend is emerging to permit network discrimination only if the discrimination is narrowly tailored to achieve legitimate objectives.