This Article will compare and contrast ex ante network neutrality regulation by a sector-specific government agency and ex post review by a court or competition authority. The Article concludes that ex post enforcement should generally serve as the goal in a deregulatory glide path that links increases in facilities-based competition with incremental reductions in government oversight . However, current marketplace conditions show insufficient competition particularly for the first and last mile of lnternet access, making it possible for Internet Service Providers (ISPs) to leverage market power in potentially harmful ways.
Many advocates for less intrusive government oversight of telecommunications support the migration from regulation by an expert agency to the use of adjudication remedies largely guided by antitrust or competition policy principles. They believe that competition authorities, or reviewing courts, can resolve disputes after they have occurred-ex post remedies-in lieu of having sector-specific regulatory agencies available to anticipate and resolve problems before they become acute-ex ante prevention. The use of ex post safeguards risks false negatives where anticompetitive conduct has occurred without detection, or lacking an effective remedy. Using ex ante safeguards risks false positives, where a regulatory agency wrongly anticipates or detects harmful conduct and imposes unnecessary remedies that could reduce incentives for more investment. Advocates for muscular ex ante regulation in the United States believe that an expert agency remains essential, because sufficiently robust facilities-based competition does not exist.
As ISPs serving end users may have both the incentive and ability to pursue anticompetitive strategies, the Article supports a limited role for an expert, national regulatory authority. However, the Article emphasizes that ex ante regulation should concentrate on procedural safeguards to ensure good faith negotiations and timely resolution of complaints in light of the immediate harm to consumers when content becomes blocked, or degraded by artificial congestion.
The Article also notes that the Supreme Court has eliminated ex post remedies when the expert regulatory agency concludes that rising competition justifies streamlining, or eliminating safeguards, including the requirement that competitors cooperate by interconnecting networks on fair, cost-based terms. Additionally, the Supreme Court has substantially limited consumers ' rights to form a class of similarly harmed parties, or to object to compulsory arbitration clauses in service contracts.
Ex Ante Versus Ex Post Approaches to Network Neutrality: A Comparative Assessment,
30 Berkeley Tech. L.J. 1561