The Penn State Law Review, 115 Penn St. L. Rev. 49 (2010), has published my article entitled Assessing the Merits of Network Neutrality Obligations at Low, Medium and High Operating Layers. It's available at: http://tinyurl.com/3h3xwah.
Here's the abstract:
The often contentious network neutrality debate typically cleaves along an absolute for, or against dichotomy. Where one stands on the issue often depends on the degree of confidence in the ability of marketplace forces to promote self-regulation and remedies to acute problems. Such a macroscopic perspective promotes a large difference of opinion with plenty of opportunities for public disparagement of the opposition. This orientation largely forecloses a more nuanced analysis that could consider the need for government intervention based on different layers of the network infrastructure used to provide Internet connections.
Whether the Internet requires some degree of government oversight, dispute resolution and stewardship requires serious consideration rather than sloganeering and dueling advocacy web pages. An essential element for such analysis breaks down the Internet into at least three layers having different characteristics that can affect the arguments for, or against the enforcement of network neutrality rules. The physical layer provides the infrastructure needed to establish a basic communications link between two or more parties. Ridding on top of this basic bitstream transmission conduit are communications protocols and standards like the Transmission Control Protocol that manage the routers that select networks to carry traffic and the Internet Protocol that establishes a globally used addressing system. Farther atop the physical layer and the layers that set up and process transmissions are the content, applications and software that provide various end-user services,
This paper will consider the network neutrality debate in the context of these three different layered components of the Internet. The paper will show that compelling arguments for enforceable network neutrality rules are strongest at the low layer, contestible at the middle layer and unnecessary at the high layer. Such a layer-based view of network neutrality explains that the need for government involvement depends on which part of the Internet’s networking infrastructure one examines. The need for government safeguards varies by layer, because the current and future degree of robust competition and effective self-regulation varies.
For one comfortable with government involvement and network neutrality rules, the paper will challenge the need for such oversight in the competitive marketplace for Internet-mediated content, applications and software. For others uncomfortable with any government involvement, the paper will identify instances where market failure, or the lack of actual or sustainable competition necessitate government oversight to ensure fair dealing by a limited number of operators providing Internet access. In the middle layers, where Internet Service Providers use protocols and technologies to manage their networks, but possibly also to favor corporate affiliates and certain third party providers of content, the paper suggests the need for a government referee authorized to resolve disputes and to examine causes of congestion and service interruptions.
The paper also considers the problems in having a single set of network neutrality requirements that fail to apply different public interest safeguards for vertically integrated ventures that operate in all three operating layers. The paper recommends layer-specific network neutrality analysis and rulemaking.