Watching over the Web: A Substantive Equality Regime for Broadband Applications

Abstract

This Article proposes a "substantive equality" solution for managing access to the Internet for broadband applications. It argues that the currently proposed solutions, self-regulation and "formal equality," either afford too much power to broadband operators or are inefficient. The model proposed in this Article accepts that the market is superior to administrative agencies when it comes to choosing which applications deserve priority on the network. Since there can be market failures, however, the Article lays out an adjudicatory enforcement mechanism to evaluate charges of harmful conduct. The adjudication would involve the application of a two-factor test for deciding which party should bear the burden of proof on the question of fairness. This method seeks to bring predictability to application developers concerned about obtaining access, while minimizing regulatory costs to network owners.