Olivier Sylvain

Volume 67, Issue 2, 443-98

One of the clear goals of the federal Communications Act is to ensure that all Americans have reasonably comparable access to the Internet without respect to whom or where they are. Yet the main focus of policymakers and legal scholars of Internet policy today has been on promoting innovation, a concept that Congress barely invokes in the statute. The flagship regulatory intervention for this approach is “network neutrality,” a rule that forbids Internet providers from blocking or interfering with users’ connections. To the extent that net neutrality addresses the distributional goals of communications law, it posits that openness will foster innovation which, in turn, will draw user interest which, in turn, will induce investment in more and better infrastructure which, in turn, will benefit today’s underserved. This is the trickle down theory of Internet innovation.

This Article critiques this approach. While it has its merits, the privileging of innovation in communications policy could exacerbate existing racial, ethnic, and class disparities because the quality of users’ Internet connections refract through those persistent demographic variables. This Article calls for a return to the distributional equality principle at the heart of communications law and policy.

The Internet is essential to almost every aspect of our lives. Like electricity a century ago, it is a technology that determines how we work, campaign, exercise, learn, heal, and love. The benefits of a high-quality Internet connection are especially importantindeed more importantfor racial minorities, poor people, and all others who must negotiate structural inequalities in other aspects of their lives in ways that advantaged people do not. Policymakers and scholars accordingly must affirmatively further equality in Internet access, or at least adopt a regulatory approach that seeks above all to ensure equality. The Internet is too indispensable to rely on innovation alone.

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