The FCC's Network Neutrality Ruling in the Comcast Case: Towards A Consensus With Europe?

In August 2008, the FCC found that Comcast's restrictions on peer-to-peer upload transmissions were unreasonably discriminatory, arbitrarily targeted a particular application, and deprived consumers of their rights to run Internet applications and use services of their choice. The Comcast ruling represents a significant change in the FCC's direction: given the FCC's past decisions that broadband Internet access services do not fall within the "common carrier" category, it is notable that the agency has now imposed nondiscrimination requirements on these services. This Article shows that the rationales articulated in the FCC's Comcast order, stressing both (i) concerns about protecting competition and (ii) concerns about protecting consumers from disruption of their ability to communicate freely and privately, are rooted in centuries of Anglo-American law defining the obligations of "common carriers."

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