In What Can Antitrust Contribute to the Network Neutrality Debate Christopher Yoo cautions against net-neutrality regulation on the basis of economic learning developed and applied in the antitrust context.

A review of both the theory and the practice of antitrust suggests that it does have something to contribute. As an initial matter, antitrust underscores that standardization and interoperability are not always beneficial and provides a framework for determining the optimal level of standardization. In addition, the economic literature and legal doctrine on vertical exclusion reveal how compelling network neutrality could reduce static efficiency and show how mandating network neutrality could impair dynamic efficiency by deterring investment in alternative last-mile technologies. As such, network neutrality is better suited to the ex post, case-by-case approach associated with the rule of reason than the ex ante, categorical approach associated with per se illegality and regulation.

Yoo compares net neutrality to a rule of per se illegality for alternative network architectures. Yoo chronicles the history of the net neutrality debate as a succession one defeats for the net neutrality proponents.

In its initial iteration, the debate focused on structural remedies that would guarantee Internet service providers (ISPs) “open access” to cable modem systems. The next generation of network neutrality scholarship abandoned structural remedies as unworkable. Instead, network neutrality proponents embraced a system of nondiscrimination, regardless of whether that was directed at the client side (i.e., consumers) and the server side (i.e., content and applications providers), in order to ensure that access to the benefits of the faster Internet depend on the ability to pay. In 2006, network neutrality proponents staged another tactical retreat, conceding the validity of consumer tiering and limiting their opposition to access tiering. Most recently, network neutrality proponents have conceded the validity of access tiering and have simply argued for nondiscrimination within each tier. The shift in focus away from content and applications providers and toward other network providers is simply the most recent in a long line of concessions.

The proponents of net neutrality lose battle after battle because a neutral net is not necessarily more efficient than discriminatory network structures. In fact, when it comes to network congestion, for example, discriminating at the protocol level is likely to be more efficient and welfare enhancing. But who says that the debate about net neutrality is primarily an economic one?

1. Net neutrality is first and foremost a question about the background institutions of a just society. The end-to-end Internet architecture is about to put an end to one-way sender-recipient communication that has all but destroyed the discursive nature of the political process. Net neutrality is about a basic infrastructure of equality built into the protocols of our communication, providing equal freedoms for all. The Bill of Rights was not about maximizing total welfare. It was — and is — about guaranteeing a fully adequate set of equal political and civil liberties to everyone. Architecture mirrors legal code. We insist on equal access to public spaces, and — despite congestion — we insist on equal access to public roads. (And where we do think about congestion pricing, we engage in a full-blown policy debate, in which economics is one but not the only concern.)
2. Yoo treats the net as if it was just the next iteration in sender-recipient communication after newspapers, radio, and TV: one sender in the middle, millions of recipients at the periphery. But that’s missing the point. The net put the means of production into the hands of millions, the “content and applications providers,” who according to Yoo deal in a “national if not international” market. But what about the millions of ordinary people who blog, podcast, maintain websites, mailing lists, etc.? In what way do they, “content producers” without a doubt, also deal on a “national if not international market?” (Maybe they do, in some sense, via syndication?)
3. Finally, I am getting tired of the rhetoric of humility. Here’s an example:

   Permitting experimentation with practices until concrete harm can be demonstrated also appears to be an appropriate way to show humility about anyone’s ability to predict which approaches will ultimately prove to be best for consumers.

   In other words, acting in the face of uncertainty is per definition hubris, whereas letting things run unchecked is the way of the ostrich humble sage. In the context of law & economics, and antitrust for that matter, humility is code for inequality. Or at least it is code for policies that are usually indifferent to even vastly unequal outcomes. Humility is a cardinal virtue. False humility, however, is just annoying. There are good arguments on both sides here, but no one should claim the mantle of the virtuous for his or her side.

In any case, Yoo’s article is well written and — within the “net neutrality is primarily an economic problem” paradigm — well argued. I just happen to question the adequacy of that paradigm.

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