bepress Legal Repository

The Public Network

Thomas Nachbar, University of Virginia School of Law

Abstract

This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. In the United States, telecommunications networks are largely owned by for-profit corporations. Concerns that such firms may use their ownership of communications networks to their own economic advantage has led many to propose restrictions on how those firms operate the networks they own, proposals that would prohibit network operators from discriminating among various users or uses of their networks. These nondiscriminatory access regimes are variously referred to as “network neutrality” or “open access” proposals.

To date, the network neutrality debate has focused almost exclusively on economic arguments for or against such regulation. Taking a step back from current debates, this paper seeks to derive from established law the accepted bases for imposing nondiscrimination rules and then to work forward to ask whether those concepts have any traction in today’s debates over telecommunications regulation. Examination of traditional nondiscriminatory access rules suggests that the modern debates’ exclusive reliance on economic efficiency as the sole justification for network neutrality is misplaced and that other criteria have played an important role in determining which businesses should be prevented from engaging in economic discrimination. From the history and the caselaw, the paper discerns the concept of “public” businesses – those privately owned businesses that are “affected with a public interest”and therefore subjected to heightened regulation, including prohibitions against economic discrimination.

The paper then applies the public-business concept to current debates over network neutrality. The paper argues that economic justifications, in addition to providing a weak foundation for network neutrality writ large, have also led network neutrality proponents to support particularly far-reaching, and easily attacked, forms of network neutrality. Concepts of publicness not only provide a stronger foundation for arguing in favor of network neutrality, they also help to cabin neutrality to forms that are both effective and defensible. In the course of the explanation, the paper introduces a new way of thinking about economic discrimination and neutrality: a distinction between use-based discrimination and user-based discrimination. Most traditional nondiscriminatory access rules were designed to counter user-based discrimination rather than use-based discrimination. The paper then offers an argument in favor of a user neutrality standard and applies that standard to the “open access” provisions that the Federal Communications Commission is including in its upcoming auction of wireless spectrum licenses to demonstrate the superiority of general user neutrality standards over specific and technology-dependent use neutrality rules such as the FCC’s open access rules.

Subject Area

Intellectual Property Law, Law and Economics, Law and Technology

Recommended Citation

Thomas Nachbar, "The Public Network" (February 2008). University of Virginia Legal Working Paper Series. University of Virginia John M. Olin Program in Law and Economics Working Paper Series. Working Paper 43.
http://law.bepress.com/uvalwps/olin/art43

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