This article examines a largely unexplored fronteir in the "Net Neutrality" debate: the Federal Trade Commisiion (FTC) Act's proscriptions against deceptive conduct as a legal limit on Internet Service Provider (ISP) discrimination against Internet traffic. ISP discrimination against certain types of Internet traffic has blossomed since 2005 when the Federal Communications COmmission (FCC), with the Supreme Court's blessings in NCTA v. Brand X and FCC, relieved ISP's from common carrier regulations that prohibited discrimination and reclassified ISPs as "information service providers." This Artcile argues taht the Internet's architecture and codes presumed common carriage, indicating that the Internet's design and industry "self-regulation" cannot alone prevent ISPs who control access to the Internet's physical layer from becoming its gatekeepers. The FTC and FCC must use their respective authority to police the gulf between ISP promises and practices, protect Internet users and competition, and safefuard the Internet itself as a source for innovation and a wide range of speech.
Catherine J. K. Sandoval,
Disclosure, Deception, and Deep-Packet Inspection: The Role of the Federal Trade Commission Act's Deceptive Conduct Prohibitions in the Net Neutrality Debate,
78 Fordham L. Rev. 641
Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss2/9