NETWORKS, NEUTRALITY & DISCRIMINATION

• 成果类型: Article
• 署名作者: Candeub, Adam
• 署名单位: Michigan State University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2017
• 页码: 125-173
• 关键词: INTERNET; rulemaking; CHOICE; LAW

摘要

This Article analyzes the Internet's central legal. issue, the so-called network neutrality question, which came to a head with the unparalleled public participation in the FCC's landmark Open Internet Order adopted in February 2015. For the first time, the FCC will expand its regulatory ambit to the Internet beyond the last mile, the link that consumers use to connect to their backbone service provider, such as Comcast or Verizon. Further, the FCC will rely upon an adjudicatory regime that marks a dramatic change in procedure, as the FCC Opically regulates broadband and telephony via rulemaking. This Article re-considers the central legal question motivating the fifteen-year old open Internet debate: what behaviors constitute network discrimination? To answer this question, this Article brings a fresh approach to the debate by analyzing the ypes of network discrimination, showing how network disputes can be reduced to questions of physical, economic, or content-based/expressive discrimination. With these ypes in mind, this Article turns to public law and discrimination in general, showing how legal issues of discrimination invariably include two determinations: defining the legal category of comparison and then measuring unequal treatment relative to that category. This inquiry has importance in public law beyond this Article's immediate regulatory concern. Finally, drawing on recent administrative law scholarship, this Article sets forth principles on how the FCC's novel adjudicatory regime can approach these determinations about network discrimination so as to possibly avoid some of the missteps that have characterized the FCC's open access regulation in the past.