In the authors' shared opinion, the economic evidence does not support the regulations proposed in the Commission’s Notice of Proposed Rulemaking Regarding Preserving the Open Internet and Broadband Industry Practices (the “NPRM”). To the contrary, the economic evidence provides no support for the existence of market failure sufficient to warrant ex ante regulation of the type proposed by the Commission, and strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run. To the extent the types of conduct addressed in the NPRM may, in isolated circumstances, have the potential to harm competition or consumers, the Commission and other regulatory bodies have the ability to deter or prohibit such conduct on a case-by-case basis, through the application of existing doctrines and procedures. Hence, the approach advocated in the NPRM is not necessary to achieve whatever economic benefits may be associated with prohibiting harmful discrimination on the Internet.
Brito, J., Cave, M. E., Crandall, R. W., Darby, L. F., Ehrlich, E., Eisenach, J. A., Ellig, J., Ergas, H., Farber, D. J., Faulhaber, G. R., Hahn, R. W., Kahn, A. E., Leighton, W. A., Litan, R. E., Robinson, G. O., Singer, H. J., Smith, V. L., Taylor III, W. E., Tardiff, T. J., Waverman, L. & Weisman, D. (2010). Net neutrality regulation: the economic evidence. FCC Workshop: Approaches to Preserving the Open Internet