In light of these threats it is tempting to reach for easy solutions. But handing the problem to a government agency with strong industry ties and poor mechanisms for public accountability to fix the very real problem of network neutrality is unsatisfying. There’s a real danger that we would just be creating more problems than we’d solve.
One alternative that would go a long way would be to foster a genuinely competitive market for Internet access. If subscribers and customers had adequate information about their options and could vote with their feet, ISPs would have strong incentives to treat all netowrk traffic fairly. The court agreed with us on this point:
“a broadband provider like Comcast would be unable to threaten Netflix that it would slow Netflix traffic if all Comcast subscribers would then immediately switch to a competing broadband provider.”
Another scenario would be for Congress to step in and pass network neutrality legislation that outlines what the ISPs are not allowed to do. But fighting giant mega-corporations like AT&T and Verizon (and their army of lobbyists) in Congress promises to be a tough battle.
Yet another option: empower subscribers to not just test their ISP but challenge it in court if they detect harmful non-neutral practices. That gives all of us the chance to be watchdogs of the public interest but it, too, is likely to face powerful ISP opposition.
These are not the only options. Internet users should be wary of any suggestion that there is an easy path to network neutrality. It’s a hard problem, and building solutions to resolve it is going to remain challenging. But here is one guiding principle: any effort to defend net neutrality should use the lightest touch possible, encourage a competitive marketplace, and focus on preventing discriminatory conduct by ISPs, rather than issuing broad mandatory obligations that are vulnerable to perverse consequences and likely to be outdated as soon as they take effect.