Addressing the next wave of Internet regulation: Toward a workable principle for nondiscrimination

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The ultimate formulation of the Federal Communications Commission's “nondiscrimination on the Internet” principle could have a significant impact on economic welfare and on innovation. In this article, we explain the economics of discrimination as it applies to the Internet, and we offer a new approach for identifying anticompetitive discrimination. Our proposal would require a complaining content provider to prove (i) the broadband service provider has discriminated in favor of some affiliated content provider that is “similarly situated” to the independent content provider; (ii) such disparate treatment is based on affiliation and not on some other consideration; (iii) the independent content provider has been unreasonably restrained in its ability to compete; and (iv) the harm it suffers as a result of the discrimination would likely redound to the harm of broadband users.