Over the past ten years, the debate over “network neutrality” has remained one of the central
debates in Internet policy. Governments all over the world, including the United States, the
European Union, the United Kingdom, France and Germany, have been investigating whether
legislative or regulatory action is needed to limit the ability of providers of Internet access
services to interfere with the applications, content and services on their networks.
Beyond rules that forbid network providers from blocking applications, content and
services, non-discrimination rules are a key component of any network neutrality regime. Nondiscrimination rules apply to any form of differential treatment that falls short of blocking. Policy
makers who consider adopting network neutrality rules need to decide which, if any, forms of
differential treatment should be banned. Network neutrality proponents generally agree that
network neutrality rules should preserve the Internet’s ability to serve as an open, generalpurpose
infrastructure that provides value to society over time in various economic and noneconomic
ways. There is, however, a lot of uncertainty on how to get from a high-level
commitment to network neutrality to a specific set of rules.
The decision for a non-discrimination rule has important implications: Non-discrimination
rules affect how the core of the network can evolve, how network providers can manage their
networks, and whether they can offer Quality of Service.1 Often, it is not immediately apparent
how a specific non-discrimination rule affects network providers’ ability to offer Quality of
Service. At the same time, it is unclear which forms of Quality of Service, if any, a network
neutrality regime should allow.
This paper proposes a framework that policy makers and others can use to choose
among different options for network neutrality rules and uses this framework to evaluate existing
proposals for non-discrimination rules and the non-discrimination rule adopted by the FCC in its
Open Internet Order. In the process, it explains how the different non-discrimination rules affect
network providers’ ability to offer Quality of Service and which forms of Quality of Service, if any,
a non-discrimination rule should allow.