It appears
that FCC Chairman Tom Wheeler wants an Open Internet order that differentiates
access into 2 categories: 1) edge provider downstream access and 2) end user
upstream access to content. This frame
has some appeal, particularly when one looks at Internet access as a two-sided
market. However the real world does not
create a bright line dichotomy or separation of these two functions.
It makes little sense to differentiate between edge providers and end users if both groups have similar grievances with the intermediary.
Edge
providers and end users can face the same potential for harm if an Internet
Service Provider (“ISP”) discriminates in ways that constrain, degrade, block
or otherwise meddle with a downstream traffic flow. Both sides of the market suffer if an ISP exercises
its market power: 1) the edge provider sells fewer ads, subscriptions, or
product; and 2) the end user encounters a reduction in utility and value for
his or her monthly broadband access subscription.
I do not
understand the possible FCC emphasis on upstream edge providers. Perhaps the drafters seek to structure an
order that resonates with the D.C. Circuit Court of Appeals examination of
potential discrimination to edge providers.
But the court also endorsed the FCC’s view that retail ISPs providing
the last mile delivery can operate as terminating monopolies. Applying an emphasis on this market power in
the last mile delivery, both edge providers and end users suffer when retail
ISPs engage in some types of discrimination.
It makes little sense to differentiate between edge providers and end users if both groups have similar grievances with the intermediary.
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