The Open Internet vs. Net Neutrality and the Free Internet

Abstract

The terms net neutrality, free Internet, and open Internet are not synonymous but rather point to three different ways of construing the principle of nondiscrimination in the treatment of Internet traffic. Net neutrality protects freedom from discrimination among types or sources of Internet traffic, without regard to any competing interests or countervailing considerations. On this understanding of the nondiscrimination principle, discriminatory practices are inherently harmful, and as such must be prohibited across the board, no matter what. The free Internet only prohibits anticompetitive discrimination. And, finally, the open Internet protects two competing freedoms: freedom from discriminatory practices and the freedom to engage in such practices. This study aims to (1) closely examine each of these three understandings of the nondiscrimination principle; (2) identify which of them best describes the policy adopted by the U.S. Federal Communications Commission (FCC); (3) explain the FCC’s decision-making by pointing out the forces that feed into it; and, finally, (4) assess the agency’s policies in the context of the Broadband Internet Access Service (BIAS) market in which they are implemented, arguing that there is a disconnect between those policies and that market.