This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. Concerns that private firms may use their ownership of communications networks to their own economic advantage has led many to propose restrictions, variously referred to as network neutrality or open access proposals, on network operators.
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. 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. The paper 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.