Network Neutrality and the Law:

A Selected Annotated Bibliography, 2006-2007*

Richard C. Stevens**

Mr. Stevens presents an annotated bibliography covering resources and articles that is designed to assist the researcher in finding current information on the law and its implications for the issues of Network Neutrality. Network Neutrality is a convoluted body of issues relating to the regulation of the private communication networks that comprise the Internet. Specifically, Network Neutrality is commonly used to describe the regulation or non-regulation of the access providers or Internet Service Providers (ISPs). Notably, advocates of regulation and non-regulation both use the same term to describe their objectives. Further, unlike the binary issues of abortion, gay marriage, war in Iraq, or tort reform, the Network Neutrality issue encompasses more than two readily identifiable perspectives. Additionally, Network Neutrality has created strange bedfellows. Labor groups and billion-dollar Internet corporations are arguing on the same side.[1] Also, George Soros’s foundations are supporting some of the same projects as the Bush administration’s State Department.[2] Ironies aside, the issue of what to do with the Internet will undoubtedly affect businesses of every size.

Business law consists of many topics ranging from how business are formed to their internal and external controls. Additionally, business law involves the many trillions of transactions which keep the wheels of commerce turning. In many ways, this is where the regulation of the Internet becomes significant. The advent of Internet commerce, culture, and education has permanently altered how businesses operate. The Internet has made getting and selling what you want an option for everyone.[3] Big and small businesses alike utilize the Internet to connect with and transact business with their customers. The environment for this activity is vital for competition and the success of every enterprise.

The resources for this bibliography were located primarily using websites located through Internet search engines. Because search engines catalog and rank web sites based on many criteria[4] they provide quick access to the website of a known research target, or they allow the location of a buffet of potentially interesting sites. Additionally, a particular website’s internal or local search tool allows you to find content from just that website. So, if you wanted to know if the Microsoft.com website has any content containing the words “Net Neutrality” you can navigate to Microsoft.com and search accordingly.[5] Combining both methods of searching allows you to find and connect facts in the same way that reporters of yesteryear did, only much faster. The key is to remember that search engines are not magic eight balls. They are machines and should be used in the same way that a card catalog is used. Determining what is really going on in a given area requires searching for and digesting information. Too often, people approach the Internet as if it were different from walking into a library and asking for directions to some other organization. Picture this the next time you type a query phrase into your favorite search engine:[6] instead of typing into a search box you are asking a human being in an office to find something for you. They hand you back a stack of addresses. Then you pick one and walk to that organization to see the corresponding document. Internet research is not magic; its just faster than pounding the pavement.

Additional research was obtained from the Westlaw.com collection of databases. As with any resource, online searching requires a consciousness of who is sponsoring what you look at. For instance, Westlaw has no policy interest other than selling searches; however, finding a page on Google.com about a topic you are searching for is more revealing.[7] Not surprisingly, many of the players in the Net Neutrality debate are simply employing government to protect or enhance their business opportunities. As usual, what was difficult was to sort rhetoric from substance in a context where the business of the Internet meets the business of government.[8]

Because Net Neutrality is a uniquely oblique topic, this bibliography may reflect shifting and evolving resources. Thus, remember that every resource here is only as reliable or meaningful as the motives of the humans who sacrifice their time and resources to make it available for your use.

Advocacy and Special Interest

Roy Mark, Breaking Down the Network Neutrality Debate, Internetnews.com, Feb. 1, 2007, http://www.internetnews.com/infra/article.php/3657341.

This story quickly breaks down the debate, and its biggest feature is its brevity. It would provide a great jumping in point from a perspective inside the networking industry.

Moyers on America, PBS.org, Net Neutrality, http://www.pbs.org/moyers/moyersonamerica/net/neutrality.html (last visited Mar. 1, 2007).

This PBS page features news and links from Bill Moyers covering the network neutrality debate. There are links to video and resources as well as listing of emerging stories on the topic. The site also appears to host a page dedicated to a discussion group. The content of the site is relatively neutral and has a journalistic tone.

NETCompetition.org, An e-Forum Promoting Competitive Internet Choices for Consumers, About Us, http://www.netcompetition.org/docs/about/ (last visited Mar. 1, 2007).

This site advocates for a “consumer-driven, on-demand Internet where consumer demand, not government fiat, ensure consumers are not blocked from the legal content, applications, and devices of their choice.” This site lists what it refers to as Network Neutrality myths and a one page “Q&A One Pager.” The site also provides a blog, speeches, and podcasts. This site could be seen as the opposition to sites like Save the Internet.com.

Reconsidering Our Communications Laws: Ensuring Competition and Innovation, Senate Judiciary Committee Testimony, June 7, 2006, http://judiciary.senate.gov/hearing.cfm?id=1937.

This is the committee’s starting page for testimony on the network neutrality debate. It features a link to a webcast of the testimony and links to the full text of the witnesses’ testimony. The witnesses include Vinton G. Cerf, Vice President & Chief Internet Evangelist for Google, Inc. in Herndon, VA as well as testimony from David L. Cohen, Executive Vice President, Comcast Corporation in Philadelphia, PA and others.

SavetheInternet.com, FAQ, http://www.savetheinternet.com/=faq (last visited Mar. 1, 2007).

This frequently asked questions page is from one of the leading pro-regulation advocacy sites. The site also features a blog as well as links to news releases. This site claims that “[t]he dispute over Net Neutrality is about who’ll control access to new and emerging technologies.” The site encourages people to call their congressional representative and it tracks the progress of various pieces of regulatory legislation. This site could be seen as the opposition to sites like NETCompetition.org.

Background Articles

Alfred E. Kahn, Telecommunications: The Transition from Regulation to Antitrust, 5 J. Telecomm. & High Tech. L. 159 (2006) (from The 6th Anniversary Silicon Flatirons Program Symposium, The Digital Broadband Migration: Confronting the New Regulatory Frontiers).

Professor Khan explains his “views of the proper role of government in a competitive, market economy.” The piece examines the Network Neutrality debate in the context of regulation and antitrust law. It attempts to propose at least a partial explanation, in antitrust terms, of how to address the Network Neutrality debate. The piece is decidedly anti-regulation.

William G. Laxton, Jr., iBrief, The End Of Net Neutrality, 2006 Duke L. & Tech. Rev. 15 (2006) (the iBrief is a student written work).

Mr. Laxton has done a good job of condensing the Network Neutrality issue into a digestible format. While his piece takes the position that the government should remain neutral on broadband regulation, it concisely examines a number of the arguments for and against Network Neutrality regulation.

Michael J. Tonsing, The Internet as You Knew It May Have Died Last Month, and You Didn’t Even Know It, 53-JUL Fed. Law. 12 (2006) (from a column titled The Federal Lawyer in Cyberia).

This piece is the shortest and the most informal in style. It is very editorial but it makes for a quick read. This a great piece for casually introducing the subject in a way that captures the importance of the topic.

Richard E. Wiley, et al., Communications Law 2006: Developments on the Horizon, 887 PLI/Pat 147 (2006) (from the Practising Law Institute’s Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series, PLI Order No. 8662).

In this article Wiley and his co-authors discuss emerging communications law issues including Broadband Services, Network Neutrality, Voice-over-Internet Protocol, and several wireless and common carrier issues. This piece is a great resource to catch-up with where these issues currently are, and where they may be going. The piece is very detailed and will require some knowledge of communications technology. Because the piece has such broad coverage, it is useful for understanding where Network Neutrality fits in the broader context of communications law.

Christopher S. Yoo, Network Neutrality and the Economics of Congestion, 94 Geo. L.J. 1847 (2006) (“from workshops conducted at the 33rd Telecommunications Policy Research Conference”).

In this piece Professor Yoo discusses Network Neutrality specifically. He covers the topic from an economic perspective and specifically discusses the real issue of network congestion. The piece analyzes the impact on consumers of allowing network service providers to distinguish service prices based on traffic priority. Yoo also examines the impact on innovation and the problems that a Network Neutrality implementation would present.