[Special Section on Net Neutrality] A Layered Network Approach to Net Neutrality
Net neutrality was the most contentious communications policy issue considered by Congress during 2005-2006. The issue is the result of a fragmented communications policy unable to deal with technology convergence. In this paper, we develop a net neutrality policy based on the layered structure of the Internet that gracefully accommodates convergence. Our framework distinguishes between discrimination in high barrier-to-entry network infrastructure and in low barrier-to-entry applications. The policy prohibits use of Internet infrastructure to produce an uneven playing field in Internet applications. In this manner, the policy restricts an Internet service provider's ability to discriminate in a manner that extracts oligopoly rents, while simultaneously ensuring that ISPs can use desirable forms of network management. We illustrate how this net neutrality policy can draw upon current communications law through draft statute language. We believe this approach is well grounded in both technology and policy, and that it illustrates a middle-ground that may even be somewhat agreeable to the opposing forces on this issue.