16 CommLaw Conspectus 1 (2007) – Dowload PDF
The Federal Communications Commission (FCC) and Federal Trade Commission (FTC) have both investigated the need for “net neutrality” policies intended to prevent broadband providers from treating different types of traffic differently. The FCC has issued an Internet Policy Statement, imposed net neutrality conditions in exchange for permitting telephone companies to merge, and attached some net neutrality rules to some of the spectrum it plans to offer for wireless services. It has also undertaken a broader inquiry to determine whether additional rules are necessary. The FTC conducted a workshop and issued a 165-page staff report in June.
The two expert agencies could bring much-needed clarification to the debate by employing the regulatory analysis utilized by most federal agencies to assess proposed regulations. Beginning in the 1970s, a series of executive orders required executive branch agencies to identify what problems they were trying to solve, assess alternative means of accomplishing their goals, and identify the benefits and costs of proposed regulations. The White House has not tried to require independent agencies, such as the FCC and the FTC, to conduct such analyses. This article suggests that the principles of good government and sound public policy compel the FCC and the FTC to conduct sound regulatory analysis before promulgating new net neutrality regulations for the broadband marketplace.
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