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Proponents of Net Neutrality legislation identify instances when Internet access providers have inhibited competition by blocking consumers use of independent VoIP service, and by prohibiting consumers from enjoying video programming over the IP network for more than ten consecutive minutes. Proponents also point to recent comments by AT&T Chairman Ed Whitacre, stating that his company intends to seek payment by independent information providers that heretofore have enjoyed “free” carriage to consumers over the Internet. Net Neutrality proponents assert that consumers already pay for network access, and that networks can seek higher prices from users of higher amounts of bandwidth – but that networks should not be able to discriminate against content providers based solely on the identity of the information source or the competitive attributes of the information being provided.
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In 2015, the FCC subjected broadband Internet service provid-ers to Title II regulation. It did so to enforce net neutrality rules, which require ISPs (internet service providers) to treat all content on their networks equally. The principal justification is to prevent ISPs, in delivering content to their subscribers, from favoring their own content or that of other creators who pay for “fast lanes.” Should such discrimination flourish—the concern goes—ISPs could relegate disfavored content providers to second-tier modes of access to consumers, degrading competition.
The rationalization for net neutrality regulation, however, is hard to square with the facts. There is, after all, virtually no evi-dence of ISPs excluding rival content. Two reasons likely explain the paucity of anticompetitive conduct. First, market forces driven by consumer demand would punish broadband service providers that throttled or excluded desired content. And, second, antitrust would forbid efforts by ISPs with significant market power to fore-close rival content. Yet, the FCC’s decision to enact broad net neu-trality rules, which the D.C. Circuit subsequently upheld in 2016, repudiated the view that antitrust is a viable solution to the threat of net neutrality violations.