The Future of Internet Regulation Philip J. Weiser∗ Policymakers are at a precipice with regard to Internet regulation. The Federal Communications Commission’s (“FCC”) self-styled adjudication of a complaint that Comcast violated the agency’s Internet policy principles (requiring reasonable network management, among other things) clarified that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation — reliance on command-and-control regulation or market forces subject only to antitrust law — are doomed to fail in a dynamic environment where cooperation is necessary to promote effective competition and continued Internet connectivity. Thus, this Article calls for a new model of regulation built around the concept of “co-regulation” — a self-regulatory body subject to public agency oversight — as the best strategy for Internet regulation going forward. This Article outlines a three-part strategy for the FCC, or any other authorized agency, to oversee Internet connectivity disputes such as those involving network management practices by broadband providers or Internet backbone interconnection. First, it calls on the FCC to act as a norm entrepreneur, identifying areas where cooperation is essential and setting forth the broad terms that should govern that cooperation. Second, it explains how the FCC could use a model of co-regulation, with a private ∗

Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice; Professor of Law, University of Colorado (on leave). This Article was written before joining the Justice Department and it does not reflect the views of the Department or U.S. Government. Thanks to Bobby Ahdieh, Oren Bar Gill, Rochelle Dreyfuss, Richard Epstein, Harry First, Ray Gifford, Ellen Goodman, Dale Hatfield, Tim Holbrook, Michael Katz, Viva Moffat, Paul Ohm, Gideon Parchomovsky, Eric Posner, Cathy Sharkey, Howard Shelanski, Harry Surden, and Joe Waz as well as participants in the NYU Law School Colloquium series for helpful comments and encouragement. I also acknowledge Dan McCormick for first rate research assistance and Jane Thompson for her usual tremendous library support services. Finally, I am grateful to the participants of the Flatirons Summit on Self Regulation and Network Management, where a number of participants offered valuable comments and insights on the ideas presented in this Article.

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sector collaborative body operating under its oversight. Third, it recommends that the FCC should exercise ex post adjudicative authority (rather than ex ante rulemaking authority), in tandem with the role played by the private body, to address breakdowns in cooperation and any departures from announced norms. This model, while of particular relevance to the future of Internet regulation, can be applied more broadly, thereby meriting the attention of policymakers and scholars interested in the future of the administrative state. TABLE OF CONTENTS INTRODUCTION ................................................................................... 531 I. COORDINATION, STRATEGIC BEHAVIOR, AND COMMON CARRIAGE ................................................................................. 537 A. The Multiparty Contracting Problem ................................. 538 B. The Limits of Common Carrier Regulation and Antitrust ... 548 II. A MODEL OF CO-REGULATION FOR INTERNET POLICY.............. 552 A. The FCC and Self-Regulation ............................................ 552 B. The FTC and Self-Regulation ............................................. 556 C. The FCC and Co-Regulation in the Internet Context .......... 558 III. TOWARD A STRATEGY OF CO-REGULATION FOR NETWORK MANAGEMENT .......................................................................... 561 A. The FCC’s Regulation of Broadband ...........................