From internet "Openness" to "Freedom": How far has the net neutrality pendulum swung?

Abstract We examine the extent to which the Federal Communications Commission's (FCC) 2015 "Open Internet" and 2018 "Restoring Internet Freedom" orders constrain anti-competitive and discriminatory pricing. We show that without regulation of interconnection agreements, and by allowing Internet Service Providers to cap bandwidth while also engaging in "zero rating," the prescriptive regulations promulgated by the FCC in its 2015 order left the door open for both anti-competitive and discriminatory pricing. Conversely, by undoing the Title II underpinning for its 2015 adopted rules, the FCC may bind itself from being able to remedy anti-competitive or discriminatory pricing in the future. Highlights • The FCC, 2015 Open Internet order did not ban paid interconnection or zero rating. • Similar ISPs could have priced interconnection to produce cartel-like behavior. • Zero rating could leave ISPs and consumers worse off than termination fees. • Thus, the 2015 order left room for anti-competitive and discriminatory pricing. • By reversing the 2015 order, the FCC has little recourse against such pricing. [ABSTRACT FROM AUTHOR]