What Can Antitrust Contribute to the Network Neutrality Debate?

Over the course of the last year, policymakers have begun to consider whether antitrust can play a constructive role in the network neutrality debate. A review of both the theory and the practice of antitrust suggests that it does have something to contribute. As an initial matter, antitrust underscores that standardization and interoperability are not always beneficial and provides a framework for determining the optimal level of standardization. In addition, the economic literature and legal doctrine on vertical exclusion reveal how compelling network neutrality could reduce static efficiency and show how mandating network neutrality could impair dynamic efficiency by deterring investment in alternative last-mile technologies. As such, network neutrality is better suited to the ex post, case-by-case approach associated with the rule of reason than the ex ante, categorical approach associated with per se illegality and regulation. To say that the substantive principles of antitrust offer insights that can inform the debate is not to say that antitrust courts represent the ideal institutional locus for enforcing a network neutrality mandate. Lingering questions about courts' institutional competence to supervise access regimes suggest that to the extent that antitrust enforcement authorities wish to take a more active role with respect to network neutrality, they would be better served by focusing their efforts on disclosure and consumer education rather than attempting to use antitrust to impose access requirements on network owners